The question of sanction under Section 197, Criminal P.C. can be decided at any stage of the case if there is sufficient material to decide that point.

ORDER

On a police charge-sheet the S. D. M., Cuttack in G. R. Case No. 586 of 1964 took cognizance of an offence under Section 409, I.P.C. against the petitioner, and summoned him to stand his trial in this case. The case thereafter was transferred to the Court of Sri D. Dalal, Magistrate, First Class, Cuttack. On 7-12-1971 the petitioner filed a petition in the Court of Mr. Dalal, inter alia, contending therein that the petitioner, being a public servant, could not be prosecuted in this case in the absence of a sanction under Section 197, Criminal P.C., and the same having not been obtained the prosecution was bad in law and was liable to be quashed. On the aforesaid petition the Magistrate passed the impugned order as follows :

"Perused the case diary. In this case cognizance under Section 409 of the I.P.C. has been taken by the learned S.D.M. on 27-6-1969 and the accused has been summoned to stand his trial.

In the case diary, I find there is sufficient material to frame a charge under Sec. 409 of the I.P.C. against the accused. At this belated stage I am not to question the competency of the learned S.D.M. for taking cognizance under Section 409 of the I.P.C. without prior approval.

Charge under Section 409, I.P.C. will be framed against the accused. Put up at 2 p.m."

Immediately after the passing of the aforesaid order the petitioner moved the Magistrate not to frame the charge against him as he would prefer a revision against the said order in this Court. The framing of the charge was stayed as prayed for; and on the filing of this revision further proceedings in the case have been stayed by this Court.

2. Mr. Sahu, the learned counsel for the petitioner, contends that in view of the fact that the above-mentioned question regarding sanction was raised before the Court below, it acted illegally in not deciding that question on merits and in dismissing the said petition by the impugned order, deciding thereby to hold the trial by framing a charge against the petitioner.

3. Mr. Swamy, the learned counsel for the State, concedes that the petitioner is a public servant coming within Section 21(12), I.P.C.

The Court, in deciding and disposing of the question of sanction by the impugned order in the manner aforesaid, has completely lost sight of the well-settled law on the subject. In Matajog's case (AIR 1956 SC 44) = (1956 Cri.L.J. 140) their Lordships of the Supreme Court observe as follows :

"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 inquiry 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. The necessity may reveal itself in the course of the progress of the case."

In the decision of this Court in Sri Prahallad Mallick's case (1970 Cut LT 1337) it has been held that the question of sanction should be taken up at the earliest possible stage, and as and when it arises and/or is raised. As per the provisions of Section 197, Criminal P.C. the Court has no jurisdiction to take cognizance of an offence without sanction, if sanction is lawfully required, and so the Court cannot legally proceed with the trial of the case as soon as the accused is able to satisfy the Magistrate that a sanction under Section 197, Criminal P.C., is required to prosecute him in the case. Accordingly the question of sanction has to be taken up for consideration at any stage of the trial, as and when it is raised, even though cognizance of the matter has already been taken on an earlier date.

In Prabhakar Sinari v. Shankar Verlekar, (AIR 1971 Goa 25) = (1971 Cri.L.J. 602) it has been held that the question relating to sanction under Section 197, Criminal P.C. can be decided at any stage of the case if there