Judgment :- Govinda Pillai, J. 1. I agree with the learned Chief Justice that the dismissal of the complaint against accused 2 and 4 was wrong. I am also of the view that for the acts of violence alleged to have been committed by the Inspector on the complainant at night in the Police-lock-up on the date of arrest, no sanction of Government is necessary to prosecute him. But for what the Inspector was stated to have done i. e. for the assault on the complainant on the public road after his arrest and while he was being taken to the Police Station in the motor vehicle, I am for holding that sanction of Government is necessary to prosecute him. The present complainant was the accused in a cognizable case and in the course of investigation he was arrested and taken to the Police-lock-up. In this the Inspector was only acting or purporting to act in the discharge of his official duty. In case of resistance on the part of the person arrested or if he refuses to accompany the Inspector to the Police Station after arrest, the Inspector would be entitled to use reasonable force on him to secure his custody and to put him in a safe place in the lock-up. It might be that the force used under the circumstances was more than what actually required. The test in such cases whether sanction is required or not, as pointed in H.H.B. Gill v. The King (A.1.R.1948 P. C 128), is whether the public officer, if challenged, can reasonably claim, that what he does, he does in virtue of his office. 2. Assuming that all that the complainant mentioned in this case are true, the Inspector could say that while taking the arrested person to the Police Station, he (complainant) refused to accompany him to the station or that he attempted to escape, and that he had to use some physical force on the person of the arrested person to enable him to take the former to the Police Station That is a very reasonable claim, the Inspector can adduce and if so, he cannot be prosecuted without Government sanction. The allegations in the complaint may be false. The claim that can be advanced by the Inspector may also be false. The allegations in the complaint may be false. The claim that can be advanced by the Inspector may also be false. But that does not give the criminal Court jurisdiction to take cognizance of the case and try it. The aggrieved party can move the Government for sanction. The Government will institute an enquiry through their officers, and as the result of the enquiry the sanction may or may not be given. The party will have however to take the consequence. Otherwise no Government can get on and no officer under Government will be safe. 3. The imperative provision in the section is that no court is to take cognizance of offences said to have been committed by a judge or Magistrate or public servant not removable from office save by or with the sanction of the Government while acting or purporting to act in the discharge of his official duty. When the criminal Court which has already accepted a complaint and issued process, is apprised by the officer accused, of the provisions of this section, that court has to apply the test mentioned in AIR 1948 P.C.128, and then drop the proceedings to the extent to which the test can be made to apply. It is not to hold an enquiry and take evidence to ascertain whether the claim advanced by the accused officer is true or not. It will also be against the injunction laid down in S. 197 that no court was to take cognizance of cases of the nature mentioned therein. The formal enquiry will be held by the Government and not by the court. The allegations in the complaint and the claims put forward by the accused are alone to be considered by the court to ascertain whether the acts alleged can be said to be done by the accused officer in his official and not in private capacity (See Hori Ram Singh v. Emperor AIR 1939 F. C. 43). The mere fact that an offence is committed by the public servant when he is in office is not enough to attract the provisions of this section (Vide Superintendent and Remembrancer of Legal affairs, Bengal v. Jadu Nath A I. R. 1940 Cal. 274). The mere fact that an offence is committed by the public servant when he is in office is not enough to attract the provisions of this section (Vide Superintendent and Remembrancer of Legal affairs, Bengal v. Jadu Nath A I. R. 1940 Cal. 274). For example if while taking the arrested person to the police lock-up, the Inspector assaults a passer-by for no reason, then he is not protected by this section though he was at that time engaged in discharging his official duty in taking the arrested person to the Police Station. If on the other hand, that passer-by had attempted to rescue the arrested person, then the Inspector would be justified in using physical force against him. 4. A Judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers in favour of the party from whom bribe was taken will be such an act Similarly, a medical officer neither acts nor purports to act as such in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. So a public servant, as emphasised in A.I.R 1948 P.C. 128, can only be said to act or purport to act, in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. This principle had been followed in a later case, Phanindra Chandra v. The King (AIR 1949 P.C.117). Thus as held in Kamla Patel v. Bhagavandas (37 Crl.L. J. 294) and several other cases a judge or public servant passing certain orders or nuking certain communications in the course of official duty, or a judge regulating the conduct of a case which he is trying, makes certain remarks which are objected to as defamatory or insulting, he commits the offence, if any, while acting in the discharge of an official duty, the reason being that the passing of the orders or making the communications constitutes his official duty. Similarly if a judge purporting to exercise the powers vested in him as a judge orders the arrest and detention in custody of a certain person, when the circumstances do not justify such action, the offence, if any, is committed by him while purporting to act in the discharge of his official duty (Vide Baimal Charan v. Sukhmoy AIR 1921 Gal. 385, Ganapathy Goundan v. Emperor, A.I.R. 1932 Mad. 214, Gangaraju v. Venki A.I.R. 1929 Mad. (559 and Kyaw Htin v. Ah Yoo A.I.R. 1934 Rang.238). If in all such cases, the judge or the Public Officer is asked to stand a prosecution and to prove that their actions come under section 107 Crl. P. C. no one will be safe in the discharge of his official duties. In all such cases sanction of Government is necessary and the aggrieved party has to obtain the same. The illustrations mentioned above answer the test laid down by the Privy Council in AIR 1948 P.C.128. In my view therefore, the Inspector in question cannot be prosecuted for anything that is said to have been done by him in using or abusing the powers vested in him as an Inspector of Police who was to arrest the accused and take him to a safe place of custody. The reasoning adopted would show that the view taken by me in Appu Keshavan v. V.G. Parameswaran Nair (1952 KLT 419) is supportable. The learned Chief Justice has conceded that for the offence of wrongful confinement sanction of Government to continue the case against the Inspector was necessary. If while he was in confinement, i. e. by asking him to remain on the verandah of the Police Station till he could be questioned, he attempted to make his escape, the Inspector would be justified in keeping him there by force. The decisions in Ahmed Mohideen v. Yusuf Ali Syed and Ramachandra Rao v. Chinnayya Gounden, AIR 1942 Mad. 81 and 664 support this view. In these cases the officer concerned purported to act in the capacity with which he is clothed. AIR 1943 Cal. 594,1917 Mad. 657.1929 Mad. 173,1931 Mad. 498 and 1935 Nag. 52 also support the above view. This provision is introduced to protect public servants from frivolous and vexations complaints made while they are doing their duty as public servants. While courts are always anxious to protect public interest and maintain law and order, the benefits conferred on Government officers from being frivolously molested should also be safe guarded. A practical view, so as to advance justice, has to be taken in matters of this nature. While courts are always anxious to protect public interest and maintain law and order, the benefits conferred on Government officers from being frivolously molested should also be safe guarded. A practical view, so as to advance justice, has to be taken in matters of this nature. I am therefore for not leaving the case of the 1st accused, as regards the acts alleged to have been done by him after the arrest of the complainant till he was put in safe custody in the Police lock-up for trial by the Magistrate, before sanction from Government is produced for prosecuting him for the offences in relation to these acts. In other respects I agree with the learned Chief Justice. Joseph Vithayathil, J. 1A. I agree with the reasoning and conclusion of my Lord the Chief Justice. Since the case law bearing on the question has been exhaustively dealt with by his Lordship I do not think it necessary to discuss it with reference to decided cases. Two propositions of law are gatherable from the decisions of the Privy Council and the Federal Court which are recognised as authoritative rulings on the point, namely, Hori Ram Singh v. Emperor (A.I.R.1939 Federal Court 43), Huntely v. Emperor (AIR 1944 Federal Court 66), Sarjoo Prasad v. Emperor (A. I.R 1946 Federal Court 25) and H. H. B. Gill v. The King (A I. R. 1948 Privy Council 128). One is that the question as to whether sanction is necessary under Section 197 of the Code of Criminal Procedure for the initiation of criminal proceedings against a public servant will have to be determined with reference to the allegations in the complaint or the police report or other information on the basis of which action is taken by the court and that it cannot be made to depend upon the case which the accused may put forward after the proceedings having been started. The other is that in order to enable a public servant to claim the benefit of the section, it is not enough that the act complained of was committed by him at the time he was discharging or was purporting to discharge his official duty but there must be some perceptible connection between the act and the discharge of his official duty. It may be a case of the public servant wrongfully and negligently discharging his official duty or a case of his exceeding his authority. If these two propositions are accepted I do not think that it is possible to hold in this case that sanction of Government is necessary for initiating proceedings against the first accused for the alleged offence of assaulting the complainant on the public road after he was arrested and while he was being taken in a motor vehicle to the police station. There is nothing in the complaint to show that the assault on the complainant was occasioned by any attempt on his part either to evade the arrest or to escape from the custody of the police. According to the allegations in the complaint, there was absolutely no connection between the assault on the complainant and the discharge of the official duty of the first accused which in this case was only to arrest the complainant and to keep him under lawful custody. If it was a case of the complainant offering resistance to the arrest or refusing to accompany the police to the station and the first accused using more force than what was necessary for effecting the arrest or for taking the complainant to the Police lock-up, the position would certainly be different. But the question for consideration is whether the allegations in the complaint justify such an assumption. It may be that upon taking evidence the Magistrate may find that the occurrence took place in the circumstances visualised by my learned brother Govinda Pillai, J. and in that case it will be the duty of the Magistrate to drop the proceedings for want of sanction under the section. Even in the case of the alleged assault on the complainant at night in the police lock up the first accused may be able to establish that it was occasioned by an attempt on the part of the complainant to escape from the lock-up. On the other hand, the evidence in the case may disclose that the assault on the complainant had nothing to do with the performance of the duty of the first accused to arrest him and to keep him under lawful custody. On the other hand, the evidence in the case may disclose that the assault on the complainant had nothing to do with the performance of the duty of the first accused to arrest him and to keep him under lawful custody. So far as the initiation of proceedings against the accused is concerned, we can only go by the allegations in the complaint and cannot anticipate the possible defence of the accused as laid down by the Federal Court in Hori Ram's case and in Sarjoo Prasad's case. As for the opinion of my learned brother Govinda Pillai, J. that the enquiry into the question whether an offence was committed by a public servant while acting or purporting to act in the discharge of his official duty should be held by the Government and not by the court, I must say with great respect that I cannot persuade myself to agree to that view. I have no doubt that it is the function of the court to enquire into the question. 2A. My learned brother has adverted to the necessity of taking "a practical view" in matters of this kind and of protecting public servants from frivolous and vexatious complaints. But the object of the section is only to protect public servants against vexatious complaints in respect of acts committed by them in the discharge of their official duties and not to confer immunity from the consequences of their actions on those public servants who abuse their position as public servants and commit acts which have no relation whatsoever with the discharge of their official duties. The considerations that should weigh with the court in the matter are well expressed, if I may say so with respect, by Nokes J. in Raghavan Pillai v. Kuriyan 34 T. L. J. 270. This is what the learned judge says: "On the; one hand, the necessity for sanction is an assurance to executive officers that they will not be harassed by malicious or frivolous prosecutions, merely because they zealously perform their functions; and the necessity for such protection is generally recognised. On the other hand, the insistence on sanction to prosecute for the abuse of the opportunities provided by executive functions may encourage excesses among subordinate officials and may result in a denial of the right even to put a guilty man upon trial." 3A. On the other hand, the insistence on sanction to prosecute for the abuse of the opportunities provided by executive functions may encourage excesses among subordinate officials and may result in a denial of the right even to put a guilty man upon trial." 3A. I agree to the order proposed by my Lord the Chief Justice allowing the revision petition. Koshi, C.J. Pursuant to the opinion of the majority the Magistrate's order dismissing the complaint is set aside and he is directed to readmit the complaint to his file and hold the trial with respect to all the charges levelled against the accused in the case and dispose of the case according to law. Allowed.