( 1 ) THE above criminal revision petition is filed by the State from an order passed by the Judicial Magistrate, First Class, Second Court, Bangalore, holding that the protection afforded under S. 170 (1) of the Mysore police Act, 1963 (to be hereinafter referred to as the Act) is not available to the accused who are constables attached to Basavangudi Police Station in Bangalore City before the stage of recording of evidence. ( 2 ) THE material facts are: the respondent-complainant Satyendrakumar, a resident of Govindappa's street in Basavangudi, Bangalore, gave a complaint before the court on 6-11-1970 against the two Constables alleging tnat they committed offences punishable under Ss. 323, 352 and 447 and 380 ot the IPC. on 27-10-1970. The complaint was referred to the Police for investigation and report under S. 156 (3) of the Cr. P. C. The Circle Inspector of Police basavangudi Sub-Division, investigated into the crime and submitted a 'b' report to treat the case as ialse. But the complainant challenged the 'b' report and undertook to prove the case. Accordingly], the learned magistrate recorded further statement of the complainant on oath and regisvered a case against the police constables and ordered issue of process for the aforesaid offences. After service of summons, the two Constables who are the accused in that case appeared before the Court. The public Prosecutor attached to that Court appeared on behalf of the Constables and presented an application on 26-5-1971 stating therein that the complaint was not maintainable as previous sanction of the Government to prosecute the Constables as required under S. 170 of the Act, had not been obtained. It is stated inter-alia in the application that the allegation made against the two accused relates to the acts said to have been committed while discharging official duties entrusted to them on 27-10-1970. The allegations against the Constables are that they approached the complainant when he was in his room. Suddenly, the first accused caught hold of the shirt collar of the complainant and uttered " Police Stationnige baro magane ''. He asked them to come into his room and requested a them "what had made them to ask him to go to the police station". They" felled the complainant and kicked him and used abusive language at him. Suddenly, the first accused caught hold of the shirt collar of the complainant and uttered " Police Stationnige baro magane ''. He asked them to come into his room and requested a them "what had made them to ask him to go to the police station". They" felled the complainant and kicked him and used abusive language at him. It is also alleged that the second accused who stayed in the room committed theft of a purse belonging to the complainant which contained Rs. 83 in cash, and 2 certificates issued by the Army Training School, Secunderabad. He was taken to the main Bazar and people gathered there. After the complainant reached the police station, the Sub-Inspector of Police directed him to remain in the police station. He went and got himself treated in the Victoria Hospital after his release by the police. He has given description of the injuries sustained by him and has also produced the wound certificate. He has prefaced his complaint by an allegation that he was subjected to assault and intimidation by the family members of one Ramachandramurthy and that he has preferred in that regard a private complaint which was pending in criminal court. He lost cash, valuables and documents and clothes etc. , and that he was not able to get any redress at the hands of the Basavangudi Police Station including the Sub-Inspector of Police (Law and Order ). ( 3 ) THE learned Prosecutor, upon these allegations, contended before the trial Court that as the acts constituting the offence were alleged to have been done by the accused under colour or in excess of their duty, the prosecution shall not be entertained except with the previous sanction of the Government. The learned Magistrate has rejected this contention and has observed that " it was premature to assert that the acts complained of are immune from prosecution as the complainant nowhere in his complaint before the Court or in his sworn testimony stated that the accused police Constables while acting in the discharge of their duties, purported to have been entrusted to them by the Head Constable of their police station, have done acts in excess of their duty and assaulted him and committed theft in his house ". ( 4 ) THE learned Government Pleader appearing for the State and also for the accused Constables contended that the learned Magistrate has ignored 'b' report which clearly shows that the accused were discharging their duties as Constables and the offences alleged against them were done while dischargingg such duty. He relied upon an entry in the station house diary and pointed out that the accused were acting in lawful discharge of their duties and the Magistrate has failed to take that circumstance into consideration while rejecting the request for immunity under sec. 170 of the Act. He next contended that the learned Magistrate has failed to apply the principles of law laid down by this Court in State v. Manickam, (1968) 2 Mys. L. J. 11. which bears on the facts of this case. ( 5 ) MR. K. N. Chandrasekhar, learned Advocate for the respondent contended that the 'b' report is not conclusive of the fact that a prima facie case was not made out against the accused Constables. He characterised 'b' report as partisan document, since the case was investigated by the Circle Inspector of Police attached to the Basavangudi Police Station in which police station the two accused were working as Constables. Thirdly, he contended that the statements of witnesses were not recorded in the presence of the complainant, and, therefore, no importance should be attached to their credibility. Lastly, he contended that there is no nexus between the offences alleed and the discharge of duty by the accused. He urged that the learned Magistrate has considered the 'b' report and also applied the principles of law laid down in the decision of this Court in 1968 (2) Mys. L. J. P. 11 to the facts of this case. ( 6 ) THERE is force in V contentions raised bv the learned Government pleader on behalf of the State and the accused. There is hardly any force in the contentions raised on behalf of the respondent. ( 7 ) AS regards the first contention of the Government Pleader, as rightly contended by the learned Government Pleader, the Magistrate except making a reference to the submission of the 'b' report by the Police, has totally ignored it. There is hardly any force in the contentions raised on behalf of the respondent. ( 7 ) AS regards the first contention of the Government Pleader, as rightly contended by the learned Government Pleader, the Magistrate except making a reference to the submission of the 'b' report by the Police, has totally ignored it. Further, the learned Magistrate has merely made a reference to the ratio of the decision in 1963 (2) Mysore Law Journal p. 11 (1), but has failed to consider the application of the ratio of the said decision to the facts of this case. The said decision is directly on the point. Such indifference on the part of the Magistrate is deprecated. The Magistrates should bear in mind that they are bound bv the decisions rendered by this Court and are required to apply the law as laid down by this court. ( 8 ) IT is unfortunate that the learned Magigstrate having disregarded the application of the law as laid down in 1968 (2) Mysore Law Journal, 11 (1) which, as Plated earlier, is directly on the point, has relied upon three decisions, two of Supreme Court in naqaraj v. State of Mys, AIR. 1964 SC. 269. and baijnath v. State of MP. , AIR. 1966 SC. 220 and ore of Goa in Prabhakar v. Shanker, AIR. 1967 Goa 120 which deal with the interpretation of the provisions of Ss. 197 and 132 of Cr. P C. On a comparison, it is clear that the wordings in Ss. 197 and 132, Cr. P. C. , are not in pari-materia with the wordings found in S. 170 of the Act Thus, it is unfortunate that the Magistrate has misdirected himself on the question of application of law bearing on the facts of this case. ( 9 ) THE learned Government Pleader took me through the 'b' report which has a reference to the station house diary, according to which these two Constables were deputed to go to the compound of the house of one ramachandramurthy where the complainant was indecently behaving with ladies and was using indecent language at them. From the complaint also, it is clear that he was taken to the police station by these Constables stating that the complainant was making Galata. From the complaint also, it is clear that he was taken to the police station by these Constables stating that the complainant was making Galata. Further it is clear from the complaint itself that the Sub-Inspector asked one of his officials to prepare a notice and set it served upon the complainant. From the complaint also, it is clear that he was taken to the police station by these Constables stating that the complainant was making Galata. Further it is clear from the complaint itself that the Sub-Inspector asked one of his officials to prepare a notice and set it served upon the complainant. It was under s. 92 of the Mysore Police Act, asking the complainant to appear in Second city Magistrate's Court at 11 A M. on 28-10-1970 It is not disputed that the complainant and his associate were charge-sheeted and were convicted for offence under S 92 (o) and (r) and were sentenced to pav a fine of rs 10 each No doubt, the complainant filed a revision petition before this court in Cr R P No 151 of 1972 and cot an acquittal on a purely technical ground that the place where he committed the offence under S 92 (o) and (r) of the Aft was not a public place or a public street These circumstances make it abundantly clear that on receiving complaint from the landlord the accused Constables went to his houpe and took him to the police station The allegation is that when the accused went to the room of the complainant the alleged offences have been committed If there was no complaint to the police against the complainant, there was no necessitv for the accused to go there In these circumstances the alleged offenes have direct connection with the discharge of their duty as constables If the allegations are proved these acts would fall either under colour or in excess of their duty The learned Magistrate's view that the complainant should state in the course of the complaint that the alleged offences were committed by the Constables in the course of discharge of their duty to give them immunity under the previsions of s 170 of the Act is totally incorrect In respect of acts donp under colour or in excess of the duty it is a matter to be gathered from the facts and circumstances available on the entire record of the case and not merely the comnlaint filed by the complainant ( 10 ) IN 1968 (2) Mysore Law Journal 11 (1), this Court has laid down as follows" In order to claim protection of S. 170 (1) of the Mysore Police act, 1963, the material point for consideration would be whether there is reasonable connection between the act and the official duty. "in that case, the complainant was in the police station standing in he verandah taking protection against rain. The Sub-Inspector of Place asked him to go away. When the complainant failed to do so, the Sub-Inspector assaulted the complainant and arrested him and later on released him on bail. In those circumstances, this court has held that sanction of government under S. 170 (1) of the Act to prosecute the Sub-Inspector of police was required. In the instant case also, on a complaint given by the members of the landlord's family, the constables were deputed to bring the present complainant to the police station and in the course of the discharge of their duty, certain offences have been alleged against them. Thus, there has been close connection between the act alleged and the official duty. Therefore the ratio of the decision of this court bears on the facts of the present case. ( 11 ) FURTHER at what stage the learned Magistrate has to consider the question of sanction, has been clearly laid down by the Supreme Court in matajog Dobey v. H. C. Bhari, AIR. 1956 SC. 44. "and also in Virupaxappa v. State of mysore, AIR. 1963 SC. 849,. These two decisions make it clear that it is not always necessary that the need for the sanction is to be considered as soon as the complaint is lodged. The complaint may not disclose that the acts constituting the offence were done or purported to be done in the discharge of the official duty; but facts subsequently coming to light on a police or judicial enquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. The question may arise at any stage of the proceedings. Whether sanction is necessary or not, may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. It is a pity that the learned Magistrate has lost sight of the principle of law governing the stage at which the immunity or the protection in section 170 of the Act is to be considered. ( 12 ) MR. Chandrasekhar, learned counsel appearing for the respondent, relied upon a decision of the Federal Court in Hori Ram Singh v. Emperor, AIR. 1939 FC. ( 12 ) MR. Chandrasekhar, learned counsel appearing for the respondent, relied upon a decision of the Federal Court in Hori Ram Singh v. Emperor, AIR. 1939 FC. 43, and urged that the offence under S. 380 of the I. P. C. cannot be said to have been done under colour or in excess of any such duty or authority since no police officer is entitled or purporting to discharge his duty, to commit theft of a purse. He urged that as laid down in the decision of Federal Court sanction is not necessary in so far as the offence of theft under S. 380 of the IPC. is concerned. This decision, in my opinion, has no application to the facts of the instant case. Firstly, the sanction was required in that case under S. 270 (1) of the Government of india Act, 1935. The wordings used in S. 270 (1) read as under:"no proceedings civil or criminal shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown of India or Burma before the relevant date, except with the consent, in the case of a person who was employed in connexion with the affairs of the Government of India or the affairs of Burma, of the Governor General in his discretion, and in the case of a person employed in connexion with affairs of a Province, of the Governor of the Province in his discretion. "section 170 (1) of the Act reads thus:"in any case of alleged offence by the commissioner, a Magistrate, police Officer or Reserve Police Officer or other person, or of a wrong alleged to have been done by such Commissioner, Magistrate, Police officer or other person, by any act done under colour or in excess of any such duty or authority as aforesaid, or wherein it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained except with the previous sanction of the Government. " ( 13 ) THE wordings occurring in these two sections are different. In s 270 (1) of the Government of India Act, 1935, the relevant words are "in the execution of his duty as a servant of the Crown in India. " ( 13 ) THE wordings occurring in these two sections are different. In s 270 (1) of the Government of India Act, 1935, the relevant words are "in the execution of his duty as a servant of the Crown in India. " These words cover the acts done in execution of duty as servant of the Crown in india or Burma. But the words used in S 170 (1) of the Act are: "acts done under colour or in excess of any such duty or authority as aforesaid or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid. . . " We have to lay emphasis on the words 'under colour or in excess of any such duty or authority'. This meant that while purporting to discharge the duty as police Officer, if the Police Officer does anything under the colour of his office or in excess of the duty, all such acts which may amount to offence or wrong are covered by the words found in S 170 (1) of the Act. Therefore, the ratio of the decision in Hori Ram Singh v. Emperor, in my opinion, cannot be applied to the facts of the instant case. ( 14 ) FOR the reasons staled above the previous sanction of the Government was necessary to prosecute the accused-constables in this case therefore, the order under revision is not sustainable in law and is liable to be set aside Accordinglv, the order is set aside and the complaint filed without the previous sanction of the Government is incompetent and no cognizance shall be taken on such complaint Therefore, the Magistrate is directed to drop the proceedings. --- *** --- .