Agarwala, J.:— This is an application for further enquiry into four complaints which have been dismissed, and comes before me on a difference of opinion between two of my learned colleagues. In each case the complainant is a student in the High School at Garhwa, and the material allegations in the four complaints are similar. It will, therefore, suffice to set out one of these complaints here:

“The humble petition of complaint of the complainant most respectfully sheweth:—

(1) That the accused no. 1 is at present the Deputy Commissioner and accused no. 2 is at present the Superintendent of Police, Palamau and accused no. 3 is the physical instructor of the Govind High English School, Garhwa, where the complainant is a student.

(2) That on 3rd March 1945, the accused no. 3 brought the complainant and six boys of the school to the bungalow of the accused no. 1 at Daltonganj where accused no. 2 was also, present for some reason which the complainant did not know at that time.

(3) That after some consultation between the three accused the complainant was made to outstretch himself with his feet on the ground and body on a raised platform in the bungalow of the accused no. 1 and remained in this position exposing his buttocks while accused no. 2 gave 7 strokes with walking stick supplied by the accused no. 1 in the manner given in the next para.

(4) That the accused no. 2 took the stick retreated a few paces ran forward and hit the complainant with the stick on his exposed buttocks putting all the strength, weight and momentum he could in the stroke and this was repeated six times more on the complainant when the complainant fainted. He regained his consciousness after few minutes.

(5) That thereafter similar treatment was meted out to other boys by accused no. 2 in the same manner.

(6) That terror-stricken and helpless as a sacrificial animal the complainant and the other students could not do anything.

(7) That overwhelmed by intense physical pain and mental agony the complainant could not do anything that day which he had to pass on bed being unable to walk at all.

(8) That next day the complainant tried to get his injuries examined by a doctor and obtain a certificate but as by that time the report of the incident had spread through the town no doctor was ready to do so, though several were approached; it is, therefore, fit and proper that your honour should examine the complainant and make a note of his injuries on the record or order some doctor to examine him in court and give a certificate for which the complainant is ready to bear, the cost.

(9) That the complainant had come to know that the matter was in connection with a fracas which took place between a circus party and some unknown men at Garhwa sometime ago; the circus people had lodged an F.I.R making false allegations against the students of the Govind High School without naming anyone in particular; there was a test identification in course of which the complainant was not even identified; and as a matter of fact he never took any part in the incident at Garhwa.

(10) That the complainant had no idea that they were being taken to be caned when he was taken to Daltonganj.

(11) That the accused have caused severe voluntary hurt to the complainant in an inhuman manner and are punishable under section 323 I.P.C

It is therefore prayed that the accused may be summoned and dealt with according to law.

And as in duty bound your petitioner shall ever pray.”

In each case the persons complained against were Mr. Ife, the Deputy Commissioner of Daltonganj, Mr. Treasure, the Superintendent of Police of Daltonganj, and Mr. Harihar Tewary, the physical instructor at the High School at Garhwa. The complaints were dismissed on the ground that sanction for the prosecution of the accused had not been obtained under section 197 of the Code of Criminal Procedure. The Judicial Commissioner has sent the cases back to the Magistrate for examination of the complainants and to afford them an opportunity of obtaining sanction for the prosecution. Section 197 is one of a group of sections in Part B of Chapter XV of the Code. The heading of Part B is

“Conditions requisite for Initiation of Proceedings.”

Section 190 empowers certain Magistrates to take cognizance of an offence upon receiving a complaint of the facts constituting the offence, or upon a police report, or upon an information received from any person other than a police officer, or upon the Magistrate's own knowledge or suspicion that the offence has been committed. When the Magistrate acts on his own knowledge or suspicion, the Magistrate is empowered by section 191 to commit the case to the Court of Session or transfer it to another Magistrate; and section 192 empowers certain Magistrates to transfer to a subordinate Magistrate any case in which cognizance has been taken by any of them. Section 193 debars the Session Court from taking cognizance of an offence except where the case is committed to it by a properly empowered Magistrate. Section 194 deals with the power of the High Court to take cognizance of an offence upon commitment or upon information by the Advocate-General. Section 195 debars any Court from taking cognizance of certain offences except upon the complaint of certain public servants or Courts. Similarly, section 196, debars any Court from taking cognizance of certain offences except upon a complaint or order of the Provincial Government or of some officer empowered by that Government. There is a similar bar to the power of a Court to take cognizance of the offence of criminal conspiracy under section 1964. Section 1965 contains special provisions relating to preliminary enquiries with regard to offences mentioned in sections 196 and 1964. Sections 198 to 1994 debar a Court from taking cognizance of certain offences except upon the complaint of specified persons. The material provisions of section 197 are:

“………………When any “Magistrate or when any public servant who is not removable from his office save by or with the sanction of a Provincial Government or some higher authority, is accused of any offence alleged to have been commuted by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction”

of the Governor-General in certain cases and the Governor of the Province in certain other cases.

For the purposes of the present case it is not disputed that first Harihar Tewary, and after him, Mr. Treasure, did chastise the complainants as alleged in the complaints, and that Mr. Ife abetted the other two accused persons. But it is contended by the Advocate-General that in doing what is attributed to them the accused were acting or purporting to act in the discharge of their official duty. If this contention be correct, no cognizance of the offence alleged to have been committed by the accused could be taken without proper sanction. No sanction having been obtained, it is necessary to determine whether the acts of the accused were committed by them while acting or purporting to act in the discharge of their official duty. The complainants do not now desire to prosecute Mr. Tewari. On behalf of the complainants it is contended that the question whether the other accused were acting or purporting to act in the discharge of their official duty must be determined on the allegations in the complaints, and that the complaints in the present instance do not disclose that the accused were so acting or purporting to act. Reliance was placed on an observation of Sulaiman, J. in Hori Ram Singh v. The Crown that “if the prosecution case as disclosed by the complaint shows that the act purported to be done in execution of duty, the proceedings must be dropped. But if the prosecution case does not involve this, the case cannot be thrown out on the preliminary ground of want of consent.” This observation was cited with approval by the Federal Court in the more recent case of Sarjoo Prasad v. King-Emperor. The facts alleged in the complaint in that case were that the complainant and his wife and certain other persons arrived at a steamer station shortly before a steamer, by which they proposed to travel, was due to leave. The complainant went to the booking office to purchase tickets. The booking clerk declined to issue tickets, alleging that it was very near the time fixed for the steamer's departure. In the meantime the complainant's wife and her companions had boarded the steamer. The complainant accordingly asked the Stationmaster to arrange for the issue of the required tickets. The Station-master refused and ordered the complainant to leave the booking office. The complainant then apparently, made an attempt to board the steamer. There was then an altercation between the Stationmaster and the complainant, whereupon the Stationmaster ordered another man and some coolies to beat the complainant, and they did so. The Magistrate before whom this complaint was made was of the opinion that sanction under section 270 of the Constitution Act was necessary before proceedings could be instituted against the Stationmaster. The complainant then applied to the Governor of Bihar for sanction and was informed in reply that “he should seek his remedy in the superior Courts if his complaint is dismissed.” When this reply was shown to the Magistrate he discharged the accused. The complainant then applied to the Sessions Judge for further enquiry into his complaint, and this was ordered. The Stationmaster moved this Court against the order directing further enquiry into the complaint, but his application was dismissed. He then appealed to the Federal Court. It was held that the act complained of could not be held, to be one done or purporting to be done in the execution of the appellant's duty as a servant of the Crown. There is a slight difference between the language of section 270 of the Constitution Act and section 197 of the Code of Criminal Procedure. The former section refers to

“an act done or purporting to be done in the execution of the duty of the accused as a servant of the Crown.”,

while section 197 refers to

“an offence alleged to have been committed by the accused while acting or purporting to act in the discharge of his official duty.”

If there is any difference in the meaning of these two sections, it is somewhat difficult to grasp it. It may be assumed that it falls within the scope of the duty of the Deputy Commissioner and the Superintendent of Police to take such steps as the law permits to prevent the commission of offences, and, when an offence has been committed, to apprehend and bring the offenders, or alleged offenders, to trial. If, while discharging this duty, they are alleged so to have acted as to have committed an offence, I have no doubt that sanction for their prosecution is required, whether the case be one governed by section 197 of the Code or by section 270 of the Constitution Act. In the present instance we are not concerned with any act alleged to have been done by the accused for the purpose of preventing the commission of an offence, nor was the assault on the complainants committed while the accused were acting in the discharge of their duty to bring the complainants to trial for any offence alleged to have been committed by them. It is no part of the duty of a Deputy Commissioner, or an officer of the police force, to chastise persons who have committed, or who are alleged to have committed offences, even though it miry be admitted by the persons accused of committing the offence that they have in fact committed it. Their duty is to apprehend the offenders and to produce them before a Court, and it is the duty of the Court alone to decide whether the alleged offence has been committed and what punishment should be inflicted on the offenders. In the judgment of one of the learned Judges before whom this case first came there is a reference to section 87 of the Penal Code. This section declares that nothing which is not intended to cause death or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause or be intended by the doer to cause to any person above the age of eighteen who has given consent, whether express of implied, to suffer that harm, or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm. The Illustration to that section is the case of two persons agreeing to fence with each, other for amusement. Such an agreement is stated to imply the consent of each to suffer any harm which in the course of such fencing may be caused without foul play, so that if one of the fencers, while playing fairly, hurts the other, no offence is, committed. There is no evidence that the complainants in the present instance were over eighteen. Nor do I consider that section 87 of the Penal Code was intended to apply to facts such as are before me in the present case. However that may be, in my view, the facts alleged in the complaints do not disclose that the accused were acting or purporting to act in the discharge of their official duty within the meaning of section 197 of the Code of Criminal Procedure. The Magistrate, in my opinion, therefore, should not have dismissed the complaints on the ground that sanction for the prosecution of the accused had not been obtained under that section.

The fact, however, remains that the complaints have been dismissed, and the question for my consideration is whether, in the exercise of the revisional jurisdiction, further enquiry into the complaints should be made. The revisional jurisdiction of this Court is discretionary, and, in considering whether the discretion should be exercised in the present instance in favour of an order directing further enquiry into the complaint, I cannot ignore certain facts which are not disclosed by the complaints, but which appear from the judgment of the Judicial Commissioner and of which there can be no doubt whatsoever. It appears that certain students at Garhwa sought to persuade the proprietor of a circus that they should be admitted at less than the rates which were being charged for admission to the circus. The proprietor refused to make any concession. In consequence of this refusal there was a fracas. The proprietor lodged a first information be we the police. Being a stranger to the place he was unable to name any of the persons alleged to have taken part in the occurrence. The complainants, however, were suspected to have taken part in the occurrence, and it appears that they agreed to submit to chastisement by the authorities of their school, if no prosecution was instituted against them. It was for the purpose of giving effect to this agreement that they were sent to the bungalow of the Deputy Commissioner for the purpose of receiving the chastisement to which they had agreed to submit at the hands of the physical instructor of the school. Mr. Ife, apparently, was not satisfied with the chastisement inflicted by the physical instructor of the school, and, therefore, requested the Superintendent of Police, who happened to be present, to inflict the chastisement himself. Now, I do not wish to be understood as in any way approving what was done. In my opinion, it was not only irregular but illegal. But I have no doubt whatsoever that the officers concerned were acting from the best of motives. Instead of being charged in a Court with the commission of a criminal offence, and possibly, of being found guilty and sentenced to imprisonment, the complainants had agreed to submit to chastisement. It is true that the chastisement which they contemplated and agreed to was chastisement at the hands of one of the school authorities, and not at the hands of an officer of police; but they do not appear to have suffered any such harm as could be considered excessive, and they have escaped the ignominy and risks of a prosecution. In these circumstances, I do not consider it desirable, in the exercise of discretionary powers, to direct further inquiry into the complaints, and I would, accordingly discharge this rule.

K.D

Rule discharged.