Dua, J.:— The petitioner Giani Ajmer Singh, Secretary, Shiromani Akali Dal, Amritsar has approached this Court under sections 435 and 439, Code of Criminal Procedure, praying for setting aside the order of the Additional Sessions Judge dated 16th May, 1962 affirming on revision the order of the District Magistrate, Amritsar dated 9th April, 1962. The two impugned orders held the petitioner's complaint against S. Ranjit Singh Grewal, Senior Superintendent of Police, Amritsar under sections 427, 435, 193 and 195 of the Indian Penal Code not to be entertainable without the previous sanction as contemplated by section 197, Criminal Procedure Code. This revision was admitted by a learned Single Judge of this Court after perusing the records which had been sent for by him. Notice was issued as far back as 5th of October, 1962, but for one reason or the other the revision has not so far been disposed of. In cases of this nature, I need hardly emphasise that expeditious disposal is of considerable importance, and undue delay might well defeat the cause of Justice.

2. Before me, the learned counsel for the petitioner has read out the complaint and has submitted that the real gravamen of the allegations in the complaint is that on 22nd of October, 1962 after a procession taken out in Tarn Taran as a protest against the irregularities committed in the counting of the votes of Sarhali constituency where from Sardar Partap Singh Kairon, the present Chief Minister, had been declared elected, defeating the rival Akali candidate Mohan Singh ??? had been tear-gassed and disposed, the respondent, in order to justify the wrongful, improper and uncalled for use of the tear gas on the crowd and use of violence, caused differen doors, window panes etc. of the Tehsil building to be smashed with the help of the police party under his control; similarly some wooden khokhas situated outside the Tehsil which were used as temporary office of lawyers and petition writers were also set at fire by the police party at the instance of the respondent. This action of the respondent, according to the complaint, amounts to offences under section 427 and 435, Indian Penal Code, and since these acts were committed with the intention of creating circumstances which may appear in evidence in judicial proceedings or in other proceedings taken by law before a public servant to induce an erroneous opinion touching points material to the result of such proceedings, they also fell with in the purview of sections 193 and 195, Indian Penal Code. Emphasis has been laid on the submission that these allegations do not attract the provisions of section 197 of the Code.

3. Here, I think it would be desirable to reproduce section 197:—

“197. Prosecution of Judges & Public Servants.—(1) 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 is the Central Government is accused of any offence alleged to have been committed br him while acting or purporting to act in the lischarge of his official duty, no Court shall take cognizance of such ??? 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

(2) Power of Central or State Governments as to prosecution.—The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, the offence or offences, for which, the prosecution of such Judge, or public servant is to be conducted, and may specify the Court before which the trial is to be held.”

The petitioner's contention is that the offence alleged in the complaint to have been committed by the respondent was not committed by the respondent while acting or purporting to act in the discharge of his official duty, for, the duty of a police officer does not lie in damaging public property and setting fire to property after the procession had successfully been dispersed. Reference has been made on behalf of the petitiner to the following reported cases. H.H.B Gill etc. v. The King . AIR 1948 PC 128., has, to begin with, been relied upon and the following passage at page 133 has particularly been referred to:—

“A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the Judgment which he delivers may be such ad act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. 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.”

Gill in the reported case was held not to be entitled to justify the acts in respect of which he had been charged as acts done by him by virtue of the office that he held. The counsel has submitted that in the present case also the respondent cannot, if charged, reasonably claim that what he did was done by him in virtue of his office. Matajog Dobey v. H. C. Bhari . A.I.R 1956 S.C 44., has next been referred to. Certain passages at p. 48 and 49 have been specifically referred and it has been argued that according to this decision it is necessary to find out whether the act and the official duty are so inter-related that one cannot 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. The contention is that though while dispersing the crowd the excesses committed might be held to fall within section 197 to the acts committed after successful dispersal of the crowd, particularly when prima facie they are offences wholly unconnected with such dispersal of the crowd, section 197 would be inappropriate and irrelevant. Amrik Singh v. State Of Pepsu . A.I.R 1959 S.C 309., is a decision on which both sides before me placed reliance, the petitioner's counsel seeking support from paragraph 8 at p. 312 where the result of the authorities considered there was summed up. Om Parkash Gupta v. State Of U.P. . A.I.R ??? S.C 458., was the next decision referred to. Finally, support was sought from K. Satwant Singh v. State of Punjab . A.I.R 1960 S.C ???., in which most of the earlier cases have been digested and commented upon. The counsel has referred me to the observations at p. 271 and the following passage has been specifically relied upon:—

“It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence, punishable under section 161 of the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence, committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences (vide Amrik Singh v. State Of Pepsu). The act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty (vide Matajog Dobey v. H. C. Bhari ),”

Relying on this passage the counsel has submitted that in the case in hand the public servant could not lay a reasonable claim that he caused damage to the property in question in the course of performance of his duty and that if at all he chose to do so this would be a pretended or fanciful claim.

4. The construction of section 197, Criminal Procedure Code, also came up before the Supreme Court in Dhannjay Ram Sharma v. M.S Uppadaya etc. . A.I.R 1960 S.C 745., the headnote of which reads thus:—

“The accused persons who were in the employ of Northern Railway, on the request of the Deputy Superintendent of Police Establishment but without any reference to their superior officers, went to witness a search in the house of the complainant, another Railway employee and were alleged to have committed offences of theft, misappropriation of properties ??? to the complainant and wrongful confinement. Search and seizure of property in the complainant's house was not in a trap case as required by the Home Office Memorandum.

Held that the duties of the accused as public servants had prima facie nothing to do with witnessing any search or helping any police officer in the matter of searches. When the accused went to witness the search they did so not in pursuance of the Home Office Memorandum and so could not possibly be said to be performing their official duty or purporting to act in the performance of their official duty.

Further assuming that witnessing the search in the complainant's house was in performance of their official duty the offences alleged to have been committed by the accused could have no direct connection with the act of witnessing the search. The mere fact that an opportunity to commit an offence is furnished by the official duty is not such a connection of the offence with the performance of such duty as to justify even remotely the view that the acts complained of are within the scope of their official duty. Hence sanction under section 197, was not necessary.”

5. As against these submissions the learned Deputy Advocate-General has drawn my attention to Krishna Pillai Madhavan Pillai etc. v. P. Sadasivan Pillai . A.I.R 1963 Kerala 7., a decision by a learned Single Judge of the Court. The head-note of his case is in the following words:—

“The complaint against the accused. Deputy Superintendent of Police, Sub-Inspector of Police, Head Constable and a constable, was that the complainants were severely beaten by the accused. The accused alleged that they had acted in the exercise of their powers under sections 127 and 128 Criminal Procedure Code in dispersing an unlawful assembly and that the complaint was, therefore, barred by section 132, Criminal Procedure Code for want of sanction of the State Government. A further contention was also raised that accused 1 and 2 were public servants removable from office only by the State Government and that to prosecute them for the offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duties sanction will have to be obtained under section 197, Criminal Procedure Code and the Court could not take cognizance against them except with the previous sanction of the State Government.

Held that the accused could not be asked to prove that they were acting in the discharge of their duties in dispersing an unlawful assembly. What is contemplated under section 32 is that the accused in such a case cannot be put on trial at all. The protection conferred by the section would be rendered nagatory if the onus was thrown on the police officers to prove in the trial that they acted under Chapter 9 Criminal Procedure Code. It would mean that the Police Officers must prove themselves to be innocent of the offences alleged against them in order to show that the complaint was invalid for want of sanction. It was not correct to say that only the complaint and the sworn statement it should be looked into and not any other circumstance or documents for the purpose of deciding whether the prosecution was barred under section 132. The accused were acting under Chapter 9 and were entitled to protection under section 132, Criminal Procedure Code.”

The counsel also quoted V.D Yesulasan etc. v. Gurusamy . A.I.R 1957 Mad. 555., which was relied upon by the Kerala High Court but this decision does not seem to carry the matter any further.

6. The learned Deputy Advocate General has lastly attempted to make a reference to an F.I.R which, according to him was made against the petitioner. This F.I.R according to the counsel, was not produced before the Courts below. It has been argued that this F.I.R would show that the allegations contained in the complaint in question are really related to the performance of their duty by the officers concerned while dispersing an unlawful assembly. I am not quite sure ??? this Court while considering the question of the competency of the complaint in the absence of sanction on revision would be justified in permitting evidence by the respondent when the petitioner has led no evidence and that too without permitting rebuttal thereof.

7. The question raised appears to me to be of considerable importance and should in my opinion, be decided by a larger Bench. I would accordingly direct that papers be laid before my Lord the Chief Justice for placing this case before a larger Bench. Since revision is pending for nearly a year it is desirable that its disposal by a larger Bench is expedited.

Mr. Amar Singh Ambalvi and H.S Toor, for Petitioner.

Mr. K.S Kawatra, Assistant Advocate General, for Respondents.

JUDGMENT OF THE DIVISION BENCH

8. Dua and Jindra Lal, JJ.:— The circumstances in which this case has been placed before this Bench are given in the ??? referring order and, therefore, need not be re-stated. The referring order may accordingly be considered to be a part of the present order.

9. On behalf of the petitioner all the authorities mentioned in the referring order have been again cited in support of his contention and in addition, our attention has been drawn to Ashwini Kumar v. Kameshwar Deo etc. . 1963 2 Cr. L.J 573., a judgment by a learned Single Judge of the Patna High Court and to Nagraj v. State Of Mysore . A.I.R 1964 S.C 369.. In the Patna decision the case law has been reviewed at length and the position has been thus stated in the head note:—

“The question whether or not the act complained of is one purporting to be done in execution of his duty as a public servant is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances. It is not every offence committed by a public servant that requires sanction for prosecution under section 197(1), 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 his 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. It is not always necessary that the need for sanction under section 197 is to be considered as soon as the complaint is lodged with the allegations therein contained. 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 prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determind from stage to stage. The necessity may reveal itself in the course of the prosecution of the case.”

For this view of the law, reliance in the reported case was placed on the decisions of the Federal Court, Privy Council and the Supreme Court mentioned in the referring order and also on some other decisions of the Patna and Calcutta High Courts. What had happened in the reported case would be sufficiently clear from the following portion of the head-note:—

“It was complained that at certain election both the Sub-Divisional Officer caught hold of the collar of the complainant and assaulted him with baton on his right elbow, and then the Deputy Superintendent of Police also struck him on the left had with baton; that thereafter the S.D.O gave him another blow on the right side of the chest above the abdomen and abused him and snatched away the identity slips, the S.D.O abused him and that thereafter the complainant was arrested and carried by the officers to the thana tied with a tight rope on a truck. The District Magistrate to whom the complaint was made, instead of sending the case for inquiry to any body, himself enquired from the accused officers certain facts in private, without giving any opportunity to the complainant to explain the matter.

Held, (i) that the arrest of the complainant and carrying him to thana may in certain circumstances, be said to be acts connected with the official duties of the two officers. But the other acts (assault and abuse) could have no reasonable connection with the official duties of these officers when there was not obstruction or resistance by the complainant.

(ii) that after the District Magistrate had examined the complain ant on solemn affirmation under section 200 and fixed a cats for inquiry under section 202, there was no justification for his making a private inquiry from the accused officers for the purpose of a decision regarding sanction. In the circumstances, the sanction under section 197 was not required in respect of the allegations of assault and abuse which constituted offences under sections 323, 500 and 54, Penal Code. The acts constituting offences under sections 342 and 129 might, however, be reasonably connected with the discharge of the official duties of the accused officers, and action in respect of these offences could be taken only after sanction was obtained.

In Nagraj's case, one Kenchappa had complained that the Sub-Inspector and another person had severely beaten one Thimma and that the Sub-Inspector when forcibly taking away Thimman and requested by Kenchappa to excuse Thimma it he had misbehaved wantonly fired from his revolver at Hanumanthappa and Shivalingappa. After the preliminary enquiry into this complaint. The Magistrate committed Nagraj to the Court of Session for trial. The case of Nagraj was that he was a Sub-Inspector of Police in the State of Mysore posted at Yagati, Kadur Taluk, in September, 1959. On 7th September, 1959, he arrested one Gidda, manufacturing illicit liquor, and sent him with a constable to the police station. Thereafter, he arrested Thimma who was supposed to be in league with Gidda in manufacturing liquor. When Thimma was being taken to the police station by the Sub-Inspector and a constable, a crowd of about 20 or 30 persons rushed at them, surrounded them and the police officials, attacked them and rescued Thimma. Nagraj asked those people not to report to violence but to remain calm. The people, however did not pay heed to the advice, caught the constable and asked Nagraj to stay there till one Kenchppa came. Upon this the Sub-Inspector again told them to go away without creating any trouble and said that there was no reason for him to wait for Kenchappa. The people threatened him and the constable with dire consequences, if they left the place. Just then Kenchappa came and then these persons encircled the Sub-Inspector and the constable and the Sub-Inspector apprehending danger to his life and to that of the constable, first fired his revolver in the air, and, when the people pelted stones at him and grappled with him, two shots went off from the revolver and injured two persons, Hanumanthappa and Shivalingappa. Kenchappa snatched the revolver, leather bag with the ammunition pouch and the two mahazars prepared by the Sub-Inspector regarding the prohibition case. The people beat the Sub-Inspector and carried him to a pond saying that they would throw him into it. They were however, released at the remonstrance of one Basappa. The persons attacking Nagraj were also committed to the Court of Session for trial. The learned Sessions Judge made the reference for quashing the commitment of Nagraj as it appeared that the two cases arose out of one incident and the Sub-Inspector was at the time discharging his duties and while so doing he had to disperse an unlawful assembly by force as his own life and that of his subordinate were in jeopardy and that, therefore, previous sanction of the Government under section 197 of the Code was necessary. Sanction under section 132 of the Code was also considered necessary. The High Court observed that the Sessions Judge was wrong in practically accepting the version of the appellant that he was surrounded by a number of persons who constituted an unlawful assembly and that they rescued Thimma and that, therefor, he was entitled to disperse the unlawful assembly by force. The Sub-Inspector of Police, being removeable from service by the Deputy Inspector General of Police, no question of sanction under section 197 was considered to arise. The High Court further observed that it was for the Sessions Judge to decide on facts established in the case whether section 132 was applicable. On appeal, to the Supreme Court, the question of sanction under section 197 was not gone into because the appellant was not shown satisfactorily to be liable to be dismissed by the State Government alone. While dealing with the scope and effect of section 132. Criminal Procedure Code, it was observed that to get the benefit of this section and to put off a clear decision on the question whether the officer's conduct amounts to an offence or not the accused has to show (i) that there was an unlawful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace; (ii) that such an assembly was commanded to disperse; (iii) that either the assembly did not disperse on such command, or if no command had been given, its conduct had shown a determination not to disperse; and (iv) that in circumstances he had used force against the members of such assembly. The accused-officer has to establish these facts just in the same manner as any other accused has to establish any other exception he pleads in defence of his conduct in a criminal case. This decision is also authority for the view that if the allegations in the complaint do not indicate that the police officer had acted or purported to act under sections 127 and 18, Criminal Procedure Code and in so doing committed the offence complained of, the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the complaint. It must proceed with the complaint in the same manner as it would have done in connection with the complaints against any other person. The occasion for the Court to consider whether the complaint could be filed without the sanction of the Government would be when at any later stage of the proceedings it appears to the Court that the action of the police officer complained of appears to come within the provisions of sections 127 and 128. This can be either when the accused appears before the Court and makes such a suggestion or when evidence or circumstances prima facie show it. A mere suggestion of the accused will not, however, be sufficient for the Court to hold that sanction was necessary. If the question of sanction is not decided in the very first instance when a complaint is filed or when the accused alleges that he could I not be prosecuted for the alleged offence without the sanction of the Government under section 132, there may be some harrasment of the accused by a frivolous complaint, but the Court has no means to hold in those circumstances that the prosecution of the accused was in connection with such action because the complainant did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted for holding otherwise. The proceedings of the Court to proceed with the complaint, as observed in this judgment emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded. A contention was raised in the reported case that some of the persons alleged to have formed part of the unlawful assembly had been, prosecuted by the State and also committed by the Magistrate to the Sessions Court for trial and that this would prima facie establish that the contention of the accused-officer about the necessity for sanction under section 132 was correct. This was repelled with the observation that the commitment of the other accused was on the basis of evidence in that case and could not be legally taken into consideration for deciding the question raised in the case against the accused officer.

10. After citing these authorities, the petitioner's learned counsel has read out the complaint presented by his client and has submitted that on 26th February, 1962, the respondent along with a huge armed police party consisting of several police officers and constabulary was present outside the Tehsil premises at Tam Taran, when the counting of votes of Tarn Taran constituency, from which Shri Gurdial Singh Dhillon, then Speaker of the Punjab Vidhan Sabha, was also a candidate, was going on. The respondent being a close relation of Shri Partap Singh Kairon, had also been present on 25th February, 1962 at the time of counting of votes of Sarhali constituency and had been watching the whole situation with anxiety; he felt very much upset on seeing on 26th February, 1962 a procession protesting against the wrongful declaration of Sarhali constituency election result in favour of Shri Kairon the then Punjab Chief Minister. Fearing the adverse effect of such a huge audience on the mind of the Election Commissioner, the respondent resolved to disperse the peaceful crowd near Tarn Taran Tehsil before the Election Commissioner's arrival. A heavy volume of tear-gas shells were thrown by the police under the respondent's direction and criminal force was also used in dispersing the crowd, and indeed the whole crowd dispersed in consequence of the use of tear-gas shells and criminal force. Master Tara Singh was also carried away under the instructions of the respondent from the gate of Tarn Taran Tehsil. In order to justify the wrongful, improper and uncalled for use of the tear-gas and violence on the crowd, the respondent caused different doors, window panes etc. of the Tehsil building to be smashed with the help of the police party under his control; and some wooden khokhas situted outside the Tehsil, which were used as temporary offices by lawyers and petition-writers, were also set on fire by the police at the instance of the respondent. Shri Gurdial Singh Dhillon, the then speaker of the Punjab Vidhan Sabha, S. Prem Singh Lalpura, M.L.C, Shri Jagjit Singh Lyallpuri, member of the Communist Party, Shri Harbhajan Singh President, Praja Socialist Party, and Shri Harbans Singh Gujral, Advocate, along with some others, according to the complaint, witnessed this incident. Immediate information of the commission of the above mentioned offence by the respondent and his party was sent by Shri Gurdial Singh Dhillon to the Inspector General of Police and to the Governor of Paujab. According to the complaint, the respondent had committed offences under sections 427/435, Indian Penal Code, by setting fire to the wooden khokhas of lawyers and petition-writers and by having caused damage to the Tehsil building by getting broken window panes and doors in support of his justification. In addition it is alleged, to put plainly, that the respondent committed the acts mentioned therein with the object of fabricating evidence to be used in judicial or other proceedings before a public officer as evidence, thereby committing offences under sections 193 and 195, Indian Penal Code. It is vehemently contended before us on behalf of the petitioner that the offences against the respondent disclosed in the complaint were not committed by him while acting or purporting to act in the discharge of his official duty and, therefore, no sanction either under section 197 or under section 132, Criminal Procedure Code is required. The orders of the learned District Magistrate and the learned Additional Sessions Judge are described to be wrong in law and perverse.

11. The respondent has on the contrary argued with equal vehemence and zeal that sections 197 and 132, Criminal Procedure Code, are both very widely worded and they must be liberally construed so as to make the public servants protection effective. He has taken us through the decision of the Federal Court in Dr. Hori Ram Singh v. Emperor . A.I.R 1939 F.C 42., which, according to him, is the basic authority and has also sought support from the ratio of the decisions in Shreekantiah Ramayya Munipalli v. State Of Bombay . A.I.R 1955 S.C 287., Amrik Singh v. State Of Pepsu, and H.H.B Gill v. The King. In addition, he has cite Hariram v. B.P Sood . A.I.R 1957 Raj. 51., Mewalal v. Totalal . A.I.R 1957 M.P 230., and R.C Pollard v. Satya Gopal Mazumdar . A.I.R 1943 Cal 594.. Besides he has attempted to seek aid from two first information reports Nos. 32 and 33 which, according to him, suggest a counter-version of the alleged happening on 26th February, 1962 and afford ample justification of the imputed orders passed by the learned District Magistrate and the learned Additional Sessions Judge.

12. On behalf of the petitioner, it has, however, been pointed out that the copies of the two first information reports had not been produced before the District Magistrate but were irregularly placed on the record of the learned Additional Sessions Judge in May, 1962, and they purport to be attested by someone on behalf of the Senior Superintendent Police, the post held by the respondent. It has also been suggested on behalf of the petitioner that the production of the first information reports by the respondent in these circumstances shows that he has adopted the version contained therein and, therefore, it is not his case that the offence alleged against him had been committed by him while acting or purporting to act in the discharge of his official duly. It is emphasised that if the respondent establishes the version given in the two first information reports, then that may be a defence on the merits but it cannot serve as a bar to the initiation of the proceedings for his prosecution. It has, however, been pointed out hat though the first information reports purport to have been lodged in February, 1962, no action thereon has so far, been taken, suggesting thereby that these reports were presumably inspired by interested parties solely or mainly for the purpose of creating defence to be urged on behalf of the respondent.

13. We have considered the arguments at the bar in the light of the allegations contained in the complaint. The principle applicable to the necessity of sanction under sections 132 and 197, Criminal Procedure Code, is fairly settled and is scarcely open to any serious doubt; the difficulty is sometimes confronted only in its application to individual cases. Section 197 has already been set out in the referring order. Section 132 may now be reproduced:—

“132. No prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any Criminal Court, except with the sanction of the State Government; and—

(a) no Magistrate or police-officer acting under this Chapter in good faith,

(b) no officer acting under section 131 in good faith,

(c) no person doing any act in good faith, in compliance with a requisition under section 128 or section 130, and

(d) no inferior officer, or soldier, sailor or airman in the armed forces doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby committed an offence:

Provided that no such prosection shall be instituted in any Criminal Court against any officer or soldier, sailor or airman in the armed forces except with the sanction of the Central Government.”

This section, as is clear, is confined to acts purporting to be done under Chapter IX of the Code which means under sections 127 to 131. Both these sections (132 and ???) are, however, couched in quite wide terms, and, broadly put, their purpose obviously is to protect responsible public servants against the institution of possible vexatious and mala fide criminal proceedings for offences alleged to have been committed by them while they were acting or purporting to act as such in the discharge of their official duty. It is, however, not every offence committed by a public servant which requires sanction under section ???, nor even every act done by him while he is actually engaged in the performance of the official duty. It is only when the act complained of is directly concerned with his official duty so that if questioned, it could be claimed to have been done by virtue of the office that sanction may be considered necessary, and this would be so irrespective of whether or not it was a proper discharge of his duty, because that question can only arise at the trial and not at the initial stage when the Court considers the necessity of sanction. Some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of the official duty: offences like acceptance of bribe or cheating, being some of them. To fall within the purview of the protection afforded by section 197, the act must bear such reasonable connection with the discharge of the official duty that the public servant charged could by a reasonable but not a pretended or fanciful justification, claim that he did the act in the course of the performance of his duty. Since the question of the necessity of sanction has to be decided judicially by the Court, it has to proceed on the material properly and lawfully placed before it by applying its judicial mind. If the allegations made in the complaint do not attract the protection of section 197 or section 132, Criminal Procedure Code, then the Court cannot throw out the complaint for want of sanction merely because the accused-public servant might possibly successfully establish that he had done the act complained of in the discharge or purported discharge of his official duty. Of course, if and when the Court finds before it material justifying the necessity of sanction, it would be its duty to stay its hands and look for the requisite sanction. In anticipation of the bare possibility of such material being placed before it by the accused, the Court cannot legitimately decline to entertain and proceed to deal with the complaint in accordance with law on the ground that absence ??? sanction under section 97 prohibits it from doing so: vide K. Satwant Singh v. The State of Punjab, where entire case law is reviewed: Dhannjay Ram Sharma v. M.S Uppadaya and Amrih Singh case. Similarly, if the allegations in the complaint do not attract the provisions of section 132, the Court can have no ground for looking for the sanction and in its absence for refusing to entertain the complaint. The ratio of Nagraj's case would apply both to section 132 and section 197 which are sister provisions having identical object in view.

14. Here, it may appropriately be observed that ours is a legal State where rule of law reigns supreme. In criminal law, the rule of law implies a combination of the notion of equality before the law with the notion that the limits of the police power should be defined with reasonable rigidness. In our Republic, every man, whatever his rank, condition or official status, is subject to the law of the land. The police officials, however, high, entrusted with the duty of enforcing law and order, are authorised and bound not only to enforce it against the other delinquent members of the society, but are under an equally solemn duty and obligation to enforce it against themselves as well; in other words, their duty to enforce law does not place them above the law; to permit this would be nugatory and indeed destructive of the rule of law itself. Of course, the rule of law must and does protect them from frivolous vexatious and mala fide prosecutions for their honest and bona fide discharge of lawful duty and this is precisely what sections 132 and 197 are designed to achieve.

15. Coming to the complaint in the case in hand, the purport of which has been stated earlier, the allegations contained therein, plainly and reasonably read as a whole, do not show or even suggest that the offence alleged to have been committed by the respondent was committed while he was acting or purporting to act in the discharge of his official duty; nor do they show or suggest that the respondent committed the act alleged against him when he was purporting to act under Chapter IX, Criminal Procedure Code. Indeed, when pressed, even the learned Assistant Advocate General had merely to fall back on the contention that if it can be visualised that the respondent may be able at the trial to urge in defence, when called upon to do so, that he had committed the act alleged while performing his duty, then the Court should look for the requisite sanction. With this extreme contention, we are unable to agree, and needless to say that the various authoritative precedents do not support it.

16. When the two first information reports were relied upon by Shri Kwatra, the learned Assistant Advocate General, we asked him if the version contained therein was his client's case. The question then naturally arose if the learned counsel was appearing for the State or for the respondent, and on our enquiry, he stated from the bar that he had no direct instructions from the respondent, but from his brief, it appeared that the Government had decided to defend the respondent at State expense. He could not state if the contents of the first information reports represented the respondent's plea; the counsel was apparently arguing on the basis of abstract legal principles. It may here be pointed that the first information report No. 32 purporting to be by one Shri Surjit Singh, District Inspector, appears to have been lodged at 5-25 P.M on 26th February, 1962 the time of the occurrence being 11/12 day time; and the first information report No. ??? purports to have been made the same day 5-3 P.M by Shri Prithipal Singh Grewal, Magistrate 1st Class, Tarn Taran. The learned Assistant Advocate General, it may also be pointed out, was not in a position to inform the Court as to what steps, if any, had so far been taken on these reports and what was the present position in regard to them.

17. The order of the learned District Magistrate, Shri Sunder Singh, dated 9th April, 1962 consists of 8/9 lines and it merely expresses his conclusion that the acts alleged were done when the respondent was acting or purporting to act in the discharge of his official duty, without giving any judicial reasons for the decision. There is absolutely no discussion either of the averments in the complaint or of the various decisions of the Federal Court, Privy Council and Supreme Court containing illuminating exposition of the law on this important subject. The injudicious brevity of the order unsupported by reasons for the conclusion gives it the complexion of a purely executive in contra-distinction with a judicial decision, reflecting a high degree of probability of undue subservience of judicial mind to administratives expediency or convenience. This is another instance which also prominently brings out the emergent importance of separating the judiciary from the executive in this State, an aspect to which I will advert later.

18. The order dated 16th May, 1962 of the learned Second Additional Session Judge, Shri Banwari Lal, on revision is undoubtedly more detailed, before whom the Public Prosecutor appearing for the State opposed the revision. The learned judge, appears to have initially stated the principle, of law correctly but he seems to have completely ignored the averments in the complaint before him and has contrary to those allegations observed that the acts complained of were directly connected with the official duties of the respondent. It may be pointed out that the learned judge on revision has relied both on, section 132 section 197 for ousting the Court's jurisdiction. At one stage, however, he has in his judgment, observed that where it is reasonably open to the accused public servant to urge in his defence the plea that he had committed the acts alleged while acting or purporting to it in the discharge of his official duties, then the Court is required to stay its hand. This view may not, in the lace of the authorities discussed earlier be completely supportable, for at the initials stage, the Court cannot imagine the possible defence of the accused which it would be open to him to substantiate. Besides, the acts complained of in the case in hand can prima facie and on the existing material hardly be judicially found to fall within the respondent's official duties, an aspect completely ignored by the Court below. The learned Additional Sessions Judge has also referred to section 195, Criminal Procedure Code, as a bar in respect of the part of the allegations in the complaint but before us the respondent's counsel has not relied on this section. The impugned order of the learned Additional Sessions Judge thus appears to us to be based on a complete misreading if not in utter disregand or ignorance of the allegations in the complaint and is, therefore, liable to be set aside. Cases like the present call for a judicious and conscientious approach by the Courts of law and justice which have to strike a proper balance between the protection of the public servants against frivolous and vexatious prosecutions and the protection of the public against high-handed, mala fide and unlawful acts on the part of those entrusted with power which can only be exercised within the limits provided by the law conferring it. Needless to state that this test would also seem to govern the administrative approach to cases like the present if the citizens are not to lose faith in the sense of justice in our set-up.

19. Before finally closing this judgment, we cannot help observing that if we are to survive as a democratic nation, governed by the Rule of Law, our judicial tribunals must be independent and free from under sub-servidence to unjudicial administrative expediency and executive convenience and this independenc must also be manifestly seen to be so. This aspect is at our present stage of progress of vital importance, particularly in view of our past heritage and background and the fast expanding administrative activities as a welfare State which vest the executive authorities with extensive power over the citizens' daily life. Even our executive officers in the discharge of their duties, having direct impact on citizens' rights must not be completely oblivious of the provisions of law and the Constitution and of the citizens' rights thereunder. We have adverted to this aspect because when the District Magistrate felt that the case in hand required prior sanction under section 197, then he being also the executive head of the district as Deputy Commissioner might well have brought these facts to the notice of the Government for the purpose of considering the desirability or otherwise of granting the requisite sanction. State, it must never be forgotten, according to our Constitution, is a legal State functioning within the bounds of law, and, as a welfare democractic State, is wedded to the basic policy of protecting the citizens even against high handed and arbitrary or mala fide acts of its own officials. The scheme of section 197 postulates a complete governmental control of the enquiry into the conduct of public servant and it would promote the cause of justice and healthy growth of our democratic set-up if in such cases the Government conscientiously and impartially, uninfluenced by collateral considerations, applies its mind to the question of desirability of proceeding against officers charged with serious allegations.

20. In view of the forgoing discussion, this revision succeeds and allowing the same we set aside the impugned orders of the learned District Magistrate and of the learned Additional Sessions Judge and remit the case back for further proceedings in accordance with law and in title light of the observations made above. It is desirable that a very senior Magistrate of judicial experience is deputed to dispose of the complaint. If at any stage it appears that sanction is necessary the Court will, of course, stay its hands and the Government will consider the question of granting or withholding sanction according to law. As enquiry into this complaint has already been unduly delayed, it is fit and proper that now the proceedings are held expeditiously for delay may tend, inter alia, to cause evidence to disappear and memory to fade. The parties are directed to appear before the learned District Magistrate on 7th September, 1964. The records may be sent to the trial Court with due despatch.

Petition allowed.