Datta, J.C.

1. In a case instituted upon complaint the non-applicant Narcndra Chandra Dev Barman alias Malukha, a Sub-Inspector of Police was tried on charges for offences punishable under Sections 342 and 384 of the Indian Penal Code alleged to have been committed on 4-8-1950. After the conclusion of the trial and after hearing the arguments the learned Magistrate disposed of the case by passing the following order in the order sheet dated 26-5-1955:

26-5-55. Heard both parties. In consideration of the documents filed and considering all facts I find that no sanction has been obtained under Section 197 Cr. P.C. The Officer concerned has been accused of having committed the offences complained of when he was acting in the discharge of his official duty. The sanction must be obtained before any proceedings are taken. In the absence of sanction under Section 197 Cr.P.C. the case is dismissed under Section 203 of Criminal Procedure Code and the accused is acquitted.

2. The complaint then moved the Sessions Judge by a revision petition and the learned Sessions Judge having come to the conclusion that in view of the provisions of Section 7 of the Police Act, 1861, no sanction under Section 197 Cr.P.C. was necessary, and also having taken the view that the learned Magistrate was bound to write a judgment on merits as required by Section 367 of Cr.P.C. and further that the order of acquittal based on the preliminary point of law was illegal has referred the case to this Court under Section 439 Cr.P.C.

3. There can be no doubt that the order of acquittal in the circumstances was not the Correct order and was without jurisdiction. The correct order on the finding that the prosecution was vitiated for want of sanction should have been one of discharge. The question was considered in Harendra Chandra v. Emperor AIR 1947 Cal 290(A), and the observations in that case with which I respectfully agree were:

This (order of discharge) appears to be the correct order to pass in such circumstances. The finding is that the whole proceedings are without jurisdiction and null and void and therefore the only thing to do is to declare the fact and to let the accused depart from Court, The Court has no more jurisdiction to acquit than to convict. This has been pointed out by the Federal Court and we may draw attention to the order passed in a case of this type by the Federal Court in Basdeo Agarwalla v. Emperor 49 Cal WN (FR) 59 : (AIR 1945 FC 16)(B).

4. It will be hardly disputed that when an accused person pleads Section 197, Cr. P. C. as a bar to such trial then it is for him to show the facts which bring that section into operation. That the onus is on the accused also finds support from Huntlay Hector Thomas v. Emperor AIR 1944 Pat 378(C) and Sarjoo Prasad v. Bidyanandan Singh AIR 1946 Pat 108(D). But in this case surprisingly enough there is nothing to show what those facts are. The order of the learned Magistrate is also silent on that point and in fact, it is difficult to follow the reasoning by which he arrives at the conclusion that the bar in Section 197 is applicable to the case. The literal sense to be put on what he says appears to be that sanction to prosecute was necessary because what the accused did, he did while acting or purporting to act in the discharge of his official duty. But that is one of the conditions and not the only condition necessary to attract Section 197.

The other condition is that the officer should not be removable from his office save by or with the sanction of the State Government in the case of a person employed in connection with the affairs of a State. But as regards this as already noticed the order and even the explanation of the Magistrate is silent.

5. The argument advanced by the learned Counsel for the non-applicant to show that sanction was necessary is two-fold. The first contention is based on Sections 5 and 35 of the Police Act, 1861. Those sections run as follows:

5. The Inspector-General of Police shall have the full powers of a Magistrate throughout the general police district but shall exercise those powers subject to such limitation as may from time to time be imposed by the State Government.'

'35. Any charge against a police officer above the rank of a constable under this Act shall be enquired into and determined only by an officer exercising the powers of a Magistrate.

6. It was therefore urged that the Inspector-General alone can dismiss a police-officer above the rank of a constable because no other police-officer has been given the powers of a Magistrate by the Act. But because there was admittedly no officer styled as the I.G. of police in this State under Section 4 of the Act at the relevant time therefore those powers could be exercised only by the State Government.

The accused was thus an officer who could not have been removed from his office save by the State Government when the offences were alleged to have been committed.

7. The next argument was that because under Section 8 of the Police Act every police-officer appointed to the police force other than an officer mentioned in Section 4 has to be given a certificate in the prescribed form under the seal of the I.G. and because there was no I.G. when the accused was appointed to the police force therefore it must be presumed that his appointment must have been made by the State Government, On this ground also he could not be removed from his post by an authority inferior to the State Government on account of the prohibition contained in Article 311(1) of the Constitution of India.

8. In my opinion neither of these contentions can bear close examination. The first argument ignores the provisions of Section 7 of the Police Act which give the power to dismiss etc., any police-officer of the subordinate ranks even to a District Superintendent of Police, and it is undisputed that there was such an officer at the head of the police force in this State at the relevant time. Section 1 of the Act provides that references to the subordinate ranks of a police force shall be construed as references to members of that force below the rank of Deputy Superintendent.

There appears to be thus at first sight a conflict between the provisions of Section 7 and Section 35 read with Section 5 because, if the I.G. who alone has been given the powers of a Magistrate by the Act is to enquire and determine a charge against a police-officer then where is the sense in enacting Section 7 which gives the power to dismiss etc., even to a District Superintendent of Police, but on closer scrutiny it would be clear that there is no such real conflict between these two provisions and the scope covered by each is different. The very fact that the legislature enacted these two separate provisions goes to support the view that the scope of each must be separate.

Section 35 speaks of a charge and makes it incumbent that the enquiry and determination of the charge under the Act shall be by an officer exercising the powers of a Magistrate, which from its very nature makes it plain that Section 35 is intended for judicial enquiries into charges under the Act and not to departmental enquiries which obviously fall within the scope of Section 7 and which are to be held subject to the provisions of Article 311 of the Constitution. This view also finds support from Tarapada Banerjee v. State of West Bengal : AIR1951Cal179 (E). Thus administratively a Sub-Inspector is removable from his office even by a District Superintendent of Police under Section 7 and that is what is material for the purpose of Section 197 Cr.P.C.

9. As regards the second contention there has been no specific assertion that the accused was appointed at any time by the State Government and it is difficult to understand why the accused should fight shy of it, if in fact he was appointed by the State Government, when if that were a fact the natural course for him would have been to obtain and file a copy of that order. It was a matter within the knowledge of the accused and should have been asserted and proved by him and in my view no speculation on that point is permissible. It in also no less significant that the objection was not raised at the earliest opportunity.

10. Again under Section 8 the certificate can be issued under the seal of any other officer as die I.G. may appoint and on the strength of his own argument the possibility of the State Government having appointed in the absence of an I.G. another officer for the purpose cannot be excluded. In that case it will clearly be not open to him to urge that the appointment was by the State Government. But here also it was for the accused to have produced his certificate, if any, and his failure to do so would raise a presumption against him rather than in his favour.

It will be thus clear that it cannot be said that the accused was not removable from his office save by or with the sanction of the State Government. The result is that no sanction under Section 197 Cr.P.C. for his prosecution was necessary. The above finding would have been enough to dispose of this revision, but some other points have also to be considered as an attempt made by the learned Counsel for the accused to show that this revision was not maintainable and should not be accepted. It is necessary for the appreciation of those points to state certain further facts connected with the trial of the case.

11. The Magistrate before whom this long drawn out case first went took cognizance under Sections 347, 384 and 161 I.P.C. (the complaint was only with regard to offences under Sections 342 and 384). Later charges under those sections were also framed on 17-4-52. It appears that after that the Sessions Judge by his order dated 21-4-53 in Criminal Motion No. 101 of 1952 ordered that the case be transferred to the Special Judge in view of the provisions of Section 10 of the Criminal Law Amendment Act (No. 46 of 1952) which had by then come into force and this was done.

The Sessions Judge himself was the Special Judge and after receiving the case he decided on 12-6-53, that since permission to prosecute under Section 161 of the I.P.C. had not been obtained, (obviously as required by the Prevention of Corruption Act, 1947,) he as a Special Judge could not take cognizance of the offence under Section 161 and therefore sent back die case to the Magistrate for the trial of the other charges. The Magistrate then framed fresh charges under Sections 342 and 384 and proceeded to try the case. The case ultimately came to the file of the Magistrate who disposed it of by the said order dated 26-5-55.

12. It was urged on the basis of the above facts that the case having been transferred to the Special Judge, he had no power to re-transfer the case to the Magistrate as he did and therefore the subsequent trial by the Magistrate was without jurisdiction.

13. In my opinion it is not correct to say that the case was transferred to the file of the Special Judge by the Sessions Judge in the sense a transfer is ordinarily understood. As Section 528 Cr.P.C. then stood the Sessions Judge had also no jurisdiction to transfer a case from the file of a Magistrate. The Magistrate himself was bound to forward the case to the Special Judge under the provisions of Section 10 of the Criminal Law Amendment Act, 1952, as the charges included a charge under Section 161 I.P.C. also and which charge was exclusively triable by a Special Judge.

The learned Sessions Judge though using the word transfer himself drew the attention of the Magistrate to Section 10. Therefore what took place in fact was this, that the Magistrate forwarded die case to the Special Judge under Section 10 of the said Act on his attention being drawn to it.

14. The jurisdiction of a Special Judge is specifically confined to certain offences only enumerated in Section 6(1) of the Criminal Law Amendment Act, 1952, and offences punishable under Sections 342 and 384 I.P.C. are not covered by them. A Special Judge can, however, try such other offences also if they happen to be the subject-matter of the charge along with an offence enumerated in Section 6(1). That makes it clear that the Special Judge must first have jurisdiction to try the case because the charge covers an offence mentioned in Section 6(1), otherwise he cannot try the other offences.

15. The position then was this, that because the sanction to prosecute, necessary under Section 6 of the Prevention of Corruption Act, 1947, had not been obtained the Magistrate had no jurisdiction to take cognizance of the offence under Section 161 and the Special Judge was not competent to take cognizance of that offence or any of the other offences namely, under Sections 342 and 384 of the I.P.C., with the result that the proceedings in respect of the offence under Section 161 being without jurisdiction were null and void.

The Special Judge thus never got the jurisdiction under the law to try the connected offences under Sections 342 and 384 and tile return of the case by him to the Magistrate who had jurisdiction to try those offences cannot by any stretch of imagination be said to have been a transfer of the case under the law. In view of this clear legal position the view which appears to me to be the correct view to take is that the Magistrate never lost his jurisdiction to try the case as far as offences other than that under Section 161 were concerned. In any case his jurisdiction revived when the Special Judge gave the finding that for want of sanction he could not take cognizance of the case.

16. It was next urged that the offence under Section 161 could not be dropped from the charge and the trial was vitiated on that account. Reliance was placed on some reported cases but those cases can have no application to the present case because the point involved in them was quite different. A charge covering more than three offences in contravention of Section 234 of Cr.P.C. cannot certainly be validated by dropping one of the charges at a late stage, or a charge cannot be withdrawn so as to deprive the accused of the right of a trial by Jury. But the present case stands on a different footing.

As already seen there was not even a complaint for the offence under Section 161 of the I.P.C. and clearly enough cognizance of it could not be taken for want of sanction, and the mistake which crept in the beginning was corrected at an early stage. There was also no question of prejudice to the accused in any way, and the other charges were separable from the charge withdrawn. This contention must therefore fail and it must be found that the trial by the Magistrate was with jurisdiction.

17. It was lastly pointed out that no interference is called for as the order of the Magistrate has not resulted in any injustice. As already seen the Magistrate decided the case on a preliminary point of law and the view taken by him was manifestly wrong. The complainant was thus denied the right to have his complaint decided on merits which the Magistrate was bound to do had he not gone wrong on the question of sanction. Interests of justice therefore require that there should be a complete decision in the circumstances of the case. The question of injustice has not to be considered with relation to the accused only, and the complainant is also entitled to consideration in that respect. This is thus a fit case where interference on the part of this Court is called for.

18. I accordingly accept the reference and set aside the order of the Magistrate acquitting the accused. In the circumstances of the case a complete re-trial is neither necessary nor will it be fair to the parties. The case will therefore go back to the trial Magistrate (Shri S.N. Roy Choudhury) for proceeding afresh from the stage at which the mistake occurred, that is the trial Magistrate will proceed to decide the case on merits after giving a chance to the parties to address arguments on the merits.