AYULYA CHARAN DAS v. ADITYA PRASAD — 1970 DIGILAW 219 (ORI)

JUDGMENT : S. Acharya, J. - This revision is against the order dated 5.4.1968 of the Court below holding, without taking into consideration certain documents filed by the defence, that sanction for the prosecution of the accused persons, Petitioners herein, was not legally necessary in this case, and then proceeding to frame charges under Sections 143, 427 and 379 Indian Penal Code against the Petitioners. 2. A complaint case, filed by p.w. 1 Manager of liquor shop, belonging to one Krupashankar Jaiswal, is pending against the Petitioners in the Court below. The allegations therein are to the effect that on 7-7-1966 at about 7 in the morning these Petitioners along with some others, headed by Petitioner Atulya Charan Das, inspite of protest, demolished the liquor shop-cum-residence of the complainant, and removed some articles including the house materials belonging to the complainant and his employees. 3. In the revision petition it is asserted, and also submitted before me, that after the Petitioners appeared before the Magistrate they prayed for their discharge on the ground, interalia, that the case was not maintainable for want of sanction u/s 376 of the Orissa Municipal Act, 1950. The Court below then ordered that without sufficient evidence on record to show that the Petitioners were councillors and/or employees of the Deogarh Municipality, and that they acted legally and in due discharge of their duty, the question of sanction could not be considered at that stage. Thereafter the complainant examined 5 witnesses who were cross-examined by the defence. On behalf of the Petitioners, the departmental papers, relating to the entire proceeding for the unauthorized construction made by the complainant, the order prohibiting him from making further construction, and the orders for the demolition of such unauthorized structure and for the execution of the said order, were" filed in the Court below showing that all the Petitioners acted in due discharge of their official duty. The Court below without looking into those papers and without proper discussion of the evidence on record to the above effect illegally framed charge against the accused persons, after holding that sanction for the prosecution was not legally necessary before cognizance was taken. 4. The Court below without looking into those papers and without proper discussion of the evidence on record to the above effect illegally framed charge against the accused persons, after holding that sanction for the prosecution was not legally necessary before cognizance was taken. 4. It was urged on behalf of the Petitioners in the Court below and also before me in this revision that the case instituted in the Court below was not maintainable against the Petitioners inasmuch as no sanction as required under the law had been obtained from the proper authority, before cognizance was taken against the accused persons. It was also urged here that as no sanction was obtained for the prosecution of the Petitioners, the Court below illegally proceeded in the matter and framed charges against the Petitioners in this case. On behalf of the complainant, the opposite party herein, both in the Court below and also in this revision, it was contended that the Petitioners demolished the house in question and removed the aforesaid materials from that place, not in due discharge of their official duty, and so it was not necessary for the complainant to obtain sanction from any body for the prosecution of the Petitioner. 5. It is seen from the impugned order that the defence filed certain documents on 19-3-1968 and urged the Court to mark them as exhibits as the said documents were all public documents. On behalf of the Petitioners it was canvassed in the Court below, and also before me that these documents would show that no permission was obtained by the complainant from the Deogarh Municipality for the construction of the said structure within the Municipal limits of Deogarh. It was urged that those papers", would show that the Petitioners acted in due discharge of the official duty in order to execute the lawful orders of the Municipal Council, and as such without sanction the case could not be proceeded with. It was urged that those papers", would show that the Petitioners acted in due discharge of the official duty in order to execute the lawful orders of the Municipal Council, and as such without sanction the case could not be proceeded with. The Court below did not accept those documents into consideration on the finding that the provisions of Chapter XXI of the Code of Criminal Procedure did not enjoin upon the Magistrate to refer to the evidence of the defense at the stage of framing charge against the accused persons, and that those documents did not form part of the prosecution evidence, and as such the defense could not urge that the documents filed on their behalf on 19.3.1968 should be marked as exhibits and should be considered along with the prosecution evidence at that stage of framing charge without considering the above documents and merely relying on the prosecution evidence, without proper sifting of the same, the Court found that the accused persons in demolishing the said house did not act in discharge of their official duty. On such finding it held that no sanction was necessary to prosecute the Petitioners in this case. 6. The Court below found as a matter of fact that the Petitioner Atulya Charan Das was the Chairman, and the Petitioner Kasinath Mahakul and Harishankar Ghose were the Municipal Councillors of the Deogarh Municipality at the relevant time. All the other Petitioners, except Petitioner Sudarsan Garnaik, were the employees of the Deogarh Municipality at that time. The Court itself finds as follows: It is true that no Court shall take cognizance of an offence except with the previous sanction of the State Government against the councillors of a Municipality who are admittedly public servants as defined u/s 21 Indian Penal Code within the meaning of Section 376 of the Orissa Municipality Act, 1950 and who are not removable from their office save by or with the sanction of the State Government, alleged to have been committed by them while acting or purporting to act in the discharge of their duties. 7. On the above finding of the Court below it, was the duty of the Magistrate to apply his judicial mind to ascertain from the facts, circumstances and all the materials before him as to whether sanction for the prosecution of the Petitioners was legally required in this case. 7. On the above finding of the Court below it, was the duty of the Magistrate to apply his judicial mind to ascertain from the facts, circumstances and all the materials before him as to whether sanction for the prosecution of the Petitioners was legally required in this case. If the Court has no jurisdiction to take cognizance of an offence without sanction, if sanction is lawfully required, then it will not be legal on its part to proceed with the trial, as soon as the accused is able to satisfy the Court, on materials available before it, that sanction legally was necessary for his prosecution in the case. The protection of sanction has to be afforded to a public servant as soon as it is available to him. So consideration as to whether sanction was necessary in the case or not should not be deferred till any later stage of the trial, and should be decided as soon as it arises or raised. The law on this point has been discussed in the decision of this Court in Prahallad Mallik v. Asok Das 1970 (XXXVI) C.L.T. 1337. 8. For the examination of the question of sanction the Court has to consider not only the materials already on record, but should, also consider all such materials which are put forward before it to the above effect. That being so the Court below acted illegally in Dot taking into consideration the aforesaid documents filed by the defence. The Court below should have allowed the defence to exhibit those documents in accordance with law and it should have considered all those documents along with all the other evidence and materials on record in order to ascertain if sanction for the purpose of prosecuting the Petitioners was required under the law in this case. On such consideration if the Court would have arrived at the finding that sanction was necessary, it could not have proceeded any further with the case in the absence of a legal sanction to that effect. 9. On such consideration if the Court would have arrived at the finding that sanction was necessary, it could not have proceeded any further with the case in the absence of a legal sanction to that effect. 9. In the above view of the matter the impugned order is set aside, and the Court below is hereby directed to afford an opportunity to the accused to prove and exhibit all their documents in accordance with law, and thereafter, on taking those documents into consideration along with the other evidence on record and any further material if produced by the parties to that effect, it should at first ascertain if sanction for the prosecution of the Petitioners is legally necessary in this case. The records of the case be immediately sent back to the Court below, who on receiving the same will proceed, as expeditiously as possible, to dispose of the matter, in accordance with law and the directions given above.