RAJKISHORE MODI Vs. STATE OF ORISSA

JUDGEMENT

(1.) ON a police charge -sheet the S. D. M., Cuttack in G. R. Case No. 586 of 1964 took cognisance 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. Dalai, Magistrate, First Class, Cuttack. On 7.12.1971 the petitioner filed a petition in the Court of Mr. Dalai, 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 Procedure Code, 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 :

(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.) THE petitioner, as it appears from the impugned order, specifically alleged that sanction under Section 197, Criminal Procedure Code was required for his prosecution, and as the same had not been obtained, the prosecution instituted against him was bad in law and was liable to be quashed. The above question was raised at a time when the Magistrate had not framed the charge against the accused -petitioner. As the question of sanction under Section 197, Criminal Procedure Code was so raised it was the duty of the Magistrate to have decided that matter at that point of time. Merely because the S. D. M. on an earlier occasion took cognisance of the matter, the Magistrate was not justified in holding that he was not competent to consider the question of sanction raised before him at that stage. The S. D. M. took cognisance of the matter on the filing of the charge -sheet of the case before him. On the appearance of the accused before the Court below he has taken objection to his prosecution on the ground of the absence of a sanction under Section 197, Criminal Procedure Code Accordingly it was the duty of the Magistrate at that stage to decide the merit of the said objection on the facts and materials then before him.