Sanction for prosecution under Section 197 of the Code of Criminal Procedure is not required when a public servant is accused of committing an offence not in discharge of his official duty.

( 1 ) IN the present application the petitioner has come up for quashing of the proceeding being case No. C-1107 of 2001 under sections 302/201/120b/109 of the Indian Penal Code.

( 2 ) THE allegation made in the petition of complaint is that on 10th May, 2001 during Assembly Election the husband of the complaint, being a supporter of a particular political party, was engaged in distributing food packets to the polling agents in a booth situated at Subhas Sarobar (Beliaghata Lake ). When the complaint was returning after casting her vote at about 2. 15 p. m. she found that a Tata Sumo car was proceeding in a high speed by waving a red cloth. She also found a crowd there and she came to know from them that police had severely assaulted her husband Topi Das with lathi as a result of which her husband became unconscious and was removed to hospital. On further enquiry she came to know that her husband was assaulted by the police with lathi on his head by the Officer-in-charge of the Phoolbagan Police Station and one Moitrababu, previous Officer-in-charge of the said Police Station at about 2. 00 p. m. without any reason. The complainant also came to know that her husband was talking with the O. C. , Phoolbagan P. S. and at that point of time the previous Officer-in-charge of the said Police Station who is now the Assistant Commissioner of Police, E. S. D. , Calcutta came there in a police jeep and gave instruction to assault the husband of the complainant. As directed by him the officer-in-charge of Phoolbagan P. S. directed the police constable namely, Sudhir Sikdar to beat the complainant's husband, Constable Sudhir Sikdar started assaulting the victim mercilessly with a lathi. The victim tried to run away to save his life but the said accused persons chased him. The husband of the complainant fell down in the lake and requested those police personnel with folded hands not to assault him. But in spite of such request the said constable struck successive blows on the head, forehead and other different parts of the body of the victim. As a result of such assault the victim became unconscious and fell down in the lake. The said police officers then left the place. The people of the locality brought the body of the victim out of water and took him to Divine Nursing Home where the doctor declared him dead.

( 3 ) ON the basis of the aforesaid complaint the learned Magistrate by his order dated 28. 5. 2001 took cognizance of the offence. After examining the complainant and other witness and recording their initial depositions the learned Magistrate was of the view that there are sufficient materials for proceeding with the case under sections 302/201/114 of the Indian Penal Code. Considering the gravity of the offence the learned Magistrate issued warrant of arrest against the said three accused persons.

( 4 ) IT may be mentioned here that the petitioner preferred an application for anticipatory bail before this Court in connection with the aforesaid case and the prayer for anticipatory bail was refused by this Court. The petitioner now has come up before this Court with a prayer for quashing of the aforesaid proceeding.

( 5 ) THE first point raised by Mr. Dutt, learned Advocate appearing for the petitioner is that the order of taking cognizance of offence suffers from serious illegality as cognizance of offence was taken without any sanction for prosecution under section 197 of the Code of Criminal Procedure. It is the contention of Mr. Dutt, learned Advocate of the petitioner, that the petitioner being a public servant and the act alleged having been committed in discharge of his official duty, the learned Magistrate cannot take cognizance of the offence in absence of sanction for prosecution in violation of the mandatory provision of section 197 of the Code. But I am unable to accept such contention of the learned Advocate of the petitioner. In my considered view section 197 Cr. PC has got no manner of applica