Judgment

GROVER, J.- The sole point for decision in this appeal by special leave is whether a complaint which had been filed against the appellant and four other persons by the respondent for various alleged offences could be entertained without necessary sanction being obtained for the prosecution of the appellant, who at the material time, was the Deputy Superintendent of Police, under Section 197 of the Criminal Procedure Code.

2. The original complaint is not before us as it has not been included in the appeal record but the allegations contained therein are given in the judgment of the learned judicial Commissioner. The complainant alleged that on March, 5, 1966 at about 4 P. M. accused Nos. 2 to 5 who were hawkers by profession and some other persons attempted to trespass on his land in Margao town with the intention of putting up stalls there. The complainant having been threatened by them, sent his brother to the police station. The police came and asked the hawkers to keep their handcarts at the place where they were kept before. Later on at about 5-30 P. M. the appellant came to the spot and spoke to the complainant in a very arrogant tone. The appellant informed the complainant that he was Deputy superintendent of Police and that he had in his possession documents which proved that the land belonged to one Atma Ram. The appellant asked the complainant to produce his documents of title but the complainant replied that those documents had been produced by him in some litigation in the civil courts. The appellant is then alleged to have threatened the complainant that he would lock him up in case there was any interference with what the hawkers wanted to do. The appellant also beckoned accused Nos. 2-5 and other hawkers to enter upon the land. When the complainant protested he was warned by the appellant that if he talked he would be slapped. The appellant also assaulted him. Thereafter the possession of the land was taken over by the hawkers.

3. The magistrate to whom the complaint was presented examined the complainant under section 200, Criminal Procedure Code and issued summons to answer the charges under Sections 149, 341, 342, 352 500, 503 and 504 read with section 34 against the appellant and other accused persons requiring them to appear on April 19, 1968. The appellant filed a petition for revision under Section 435 of the Code before the learned sessions Judge in which the main point taken was that the previous sanction under section 197, Cr. C., to prosecute the appellant was required which had not been obtained. The learned Sessions Judge made an order recommending that the magistrate be directed to require the complainant to obtain the requisite sanction before prosecuting the appellant This matter was heard by a bench consisting of the judicial Commissioner and the Additional Judicial Commissioner. The Judicial Commissioner was of the view that there was no material on the record to come to the conclusion that the acts complained of would be protected by the provisions of Section 197 (1) of the Code. The learned Additional Judicial Commissioner took a contrary view and held that sanction was necessary. The order of the court was that there being no third Judge to resolve the difference of opinion, the order of the learned magistrate issuing the summons be confirmed in terms of proviso Section 7 (2) of the Goa, Daman and Diu (Judicial Commissioner s Court) Regulation, 1963.

4. It may be mentioned that in the statement recorded under Section 200 of the Criminal Procedure Code, by the magistrate, the complainant made more or less the same allegations as were made in the complaint. According to the learned Additional Judicial Commissioner in the statement made in court it was not affirmed that the complainant had been wrongly restrained or confined nor was it mentioned that he was actually assaulted in the sense that physical force was used against him. The worst that could be said, according to the Additional Ju