ORDER

1. This appeal by special leave, is against the order passed by the High Court of Gauhati in Criminal Revision No. 336 of 1982 decided on July 30,1986.

2. The matter arises in this way.

3. The respondents filed a complaint against the appellant, who at the relevant time was a Superintendent of Police posted at North Lakhimpur in respect of some incident After examination of the complainant, the Magistrate before whom the complaint was filed issued process. The appellant entered appearance and contended that a sanction under Section 197 of the Code of Criminal Procedure was necessary to sustain the complaint against him and since there was no such sanction, the prosecution against him could not continue. The learned Magistrate accepted the objection and discharged the appellant The respondent thereafter filed a criminal revision before the High Court. The High Court by the order impugned herein has allowed the criminal revision. The High Court was of opinion that a sanction under Section 197 of the Code is not necessary having regard to the facts of the case.

4. In support of the conclusion, the High Court has not only referred to the averments in the complaint, but also statements of the complainant which were recorded before issuing the process. Some documents which are yet to become evidence in the case were also relied upon to reach the conclusion that a sanction under Section 197 of the Code is not necessary. The High Court has remanded the case for trial It is against this order of the High Court, the present appeal has been preferred.

5. Having heard appellant in person and gone through the order of the High Court, it appears to us that the order of the High Court cannot be sustained. The complaint of the respondent is one-sided version. The other documents relied upon by the High Court are yet to become evidence. On these, one cannot reach the conclusion that the appellant has exceeded his powers.

6. We agree that the want of sanction under Section 197 of Code is a prohibition against institution of the proceedings, and the applicability of the section must be judged at the earliest stage of the proceedings. Regard being had to these principles, we are of opinion that it would be proper that the Magistrate considers the question of necessity of sanction after recording some evidence with opportunity to the parties. The court then will be in a better position to come to a conclusion whether on the facts so established prima facie, sanction under Section 197 is necessary or not.

7. We, therefore, allow this appeal and in reversal of the judgment of the High Court, we direct the learned Magistrate to take some evidence and consider the question of sanction before framing a charge.

8. Before parting with the case, we may also observe that the case relates to a very petty matter of the year 1982. On the one hand, a public man is involved and on the other, a responsible public officer is involved. We do hope that the complainant would consider whether in the circumstances of the case, it would be proper for him to pursue the matter further at this length of time.

9. In the result, while setting aside both the orders of the courts below, we direct the trial Magistrate to dispose of the matter in the light of the observations made.

For Citation : 1990 (Supp) SCC 41.