JUDGMENT 1. IN this application under Article 226 of the Constitution the petitioner who at the time of the making of this application which was the 1st of September, 1977, working as the Deputy commissioner of Police, Detective Department, Lalbazar, Calcutta challenges an order dated 4th of August, 1977, granting sanction under section 197 of the code of Criminal Procedure, 1973 and the proceedings pending in the Court of the learned Additional Chief President cy Magistrate in Case No. C/783 of 1978. Behind this challenge there is a history and a certain amount of controversy. On the 11th of November, 1970, two brothers Ranjit Chakraborty and samir Chakraborty, sons of one Harshsa chakraborty died as a result of bullet injuries. To-day compensation and/or retribution, as one would like to view it, is being sought by the process of the sanction which is the subject matter of challenge as mentioned before. In or under, therefore, to appreciate the challenge it would be necessary to consider the facts leading up to the alleged incident of 11th of November, 1970, and the subsequent events thereafter. The petitioner is a senior Police Officer of the calcutta Police belonging to the Cadre of the Indian Police Service and as indicated before posted at the time of the making of the application as Deputy commissioner of Police, Detective Department. He is now under an order of suspension. According to the petitioner, the petitioner has put in more than 35 years of creditable service in the police department in various capacities and he asserts that he has earned the recognition of all concerned as an able, efficient and honest officer of the Police Department. The petitioner was twice awarded the President of India's Police medal for gallantry as well as distinguished service, which according to the petitioner, is rare honor conferred up an the Police Officer and/or achieved by a police Officer in this country. The petitioner had held different responsible posts in the Police Department and was the Deputy Commissioner of Police, north and North Suburban Division in the years 1970 to 1973. 2. THE petitioner states that it was common knowledge that during 1969-71 different parts of Calcutta particularly the places within the jurisdiction of shyampukur Police Station, Jorabagan police Station, Chitpur Police Station, cossipore Police Station etc. 2. THE petitioner states that it was common knowledge that during 1969-71 different parts of Calcutta particularly the places within the jurisdiction of shyampukur Police Station, Jorabagan police Station, Chitpur Police Station, cossipore Police Station etc. were highly affected by serious rowdy and antisocial activities and the lives and properties of the citizens became insecure as well as the law and order situation were almost on the verge of collapse unprovoked murders and attacks on the lives of common men, political personalities and police personnel were daily occurrences. During this period, according to the petitioner, more than 33 police personnel besides about 100 members of the public including political workers had lost their lives in the hands of anti-social and rowdy elements including extremists and attempts to murder were made on quite a large number of people. The petitioner asserts that some of such murders took place even in broad day light in public places, the people became highly terrorized and panik-stricken and the normal flow of life was almost suspended. The 'petitioner states that one sergeant of Calcutta police, namely Monoranjan Mukherjee, was brutally murdered on Shyampukur street in the morning in the midst of thousands of persons in broad day light. Late Hemanta Kumar Basu was also cruelly murdered on the same Shyampukur Street. In and around Shyampukur street, several murders of police personnel and ordinary people including political works took place and dangerous anti-social and rowdy activities were of daily occurrence. Snatching and attempts of snatching of fire-arms from police personnel, while they were on duties, were very common during this period. Mainly the police personnel became the targets of these anti-socials and as such several incidents of bomb-throwing and. firing on police patrol, cars took place. As a result, the morale of the police force came to be a very low ebb. The petitioner states that in such a situation the police while discharging their patrol duties for their own safety and security were, on occasions, compelled to resort to open fire on the miscreants. The petitioner asserts that the petitioner was posted in 1969-70 as the Deputy Commissioner, North and North Suburban district of Calcutta and used to accompany police patrol party in highly disturbed areas almost every night during the aforesaid period in order to maintain the moral of the police personnel and to restore law and order. The petitioner asserts that the petitioner was posted in 1969-70 as the Deputy Commissioner, North and North Suburban district of Calcutta and used to accompany police patrol party in highly disturbed areas almost every night during the aforesaid period in order to maintain the moral of the police personnel and to restore law and order. On November 11, 1970 according to the petitioner, at about 8-30 p. M. a police party consisting of the petitioner with Sri Shew Mongal Singh, officer-in-charge of the Jorabagan police Station, A. K. Maitra and p. Chakraborty of Burtolla V Police station, C. R. Ganguly and Sergeant b. Thakur of Chitpur Police Station and some constables of Jorabagan, Chitpur and Burtolla Police Stations belonging to the different areas of the North division, as a routine move went our as usual to round up, what the petitioner describes, as antisocials who created havoc under the cover of darkness disrupting the normal life of the citizens during the height of what is known as naxalite activities in November, 1970 in the jurisdiction of the different police Stations of North Division of calcutta. They started in 3 private cars for such round up and in course came to Shyampukur Street from east to west near its crossing in Telipara Lane at about 9-55 P. M. on the same night when it was found that the said road was completely dark and was drizzling at the time. In the headlight of the vehicle the police party noticed that a group of youngmen 8 to 10 in number were moving about in suspicious manner near about the place. The police party stopped the vehicle and the officer-in-charge of the Jorabagan Police Station sri Shew Mongal Singh got clown from the vehicle and proceeded towards the group of youngmen being followed at a little distance by the police partly. As soon as the said Shew Mongal Singh approached the group of young men a bomb was aimed at the police party. The bomb, however, overshot its mark but the said Shew Mongal Singh was found grappling with one of the young men who was approximately of about 25 years of age, medium built and wearing a pair of trousers and a shirt. The bomb, however, overshot its mark but the said Shew Mongal Singh was found grappling with one of the young men who was approximately of about 25 years of age, medium built and wearing a pair of trousers and a shirt. All the Police officers and men in the cars thereafter quickly alighted from the respective motor vehicles and took up positions in different directions almost simultaneously showers of bombs were thrown upon the police party from different directions according to the petitioner and shots were also fired on the police party as a result whereof the said Shew Mongal Singh received the bullet injury and was profusely bleeding. The throwing of bombs continued according to the petitioner unabated and despite the presence of so many police officers and men, the said assembly of young men became very violent and continued their attack without any sign of respite the said Shew Mongal Singh was immediately removed to R. G. Kar hospital under the order of the petitioner and even after the removal of the said Shew Mongal Singh to Hospital with bullet injury, throwing of bombs went on continuing and as such the petitioner along with other officers and men took cover between the vehicles and buildings to save their lives, Inspite of warning given to the members of the said assembly, which the petitioner has described as unlawful assembly, the situation, according to the petitioner, was going from bad to worse and a number of officers and men including the petitioner received injuries. Under such circumstances it was found that the lives of all the members of the police party were in imminent danger and the police party opened fire as a last resort to disperse the riotous crowd and save the police party from extinction as the police party was encircled and overpowered in that surrounding. The petitioner states that after the police had resorted to firing, the situation came under the control when a search was conducted for the casualties if any. About 50 yards to the south of the place of the incident one Youngman vas found lying with bullet injuries and on search of his person a live bomb was recovered from a pocket of his trousers and one big bhojali was also ticked to his waist below the trousers. About 50 yards to the south of the place of the incident one Youngman vas found lying with bullet injuries and on search of his person a live bomb was recovered from a pocket of his trousers and one big bhojali was also ticked to his waist below the trousers. The injured person was placed in one of the vehicles for being taken to hospital and when the police party was about to move, shouts were heard from behind that another Youngman with injuries was lying nearby. Some of the police officers and men went to the direction of shouts and found one Youngman of about 20/22 years of age weaning a pair of trousers and shirt lying inside the entrance passage of a house. The police officers and men then took, according to the petitioner, the injured man and searched his person and recovered one live bomb from the right side pocket of his trousers but nothing else vas found. The second injured was also placed in the same vehicle and were together removed to R. G. Kar Hospital where they subsequently succumbed to their injuries. The said injured persons were later identified as Ranjit chakraborty and Samir Chakrabory, both sons of one Harsanath Chakraborty of 74/1, Shyampukur Street, Calcutta. Shew Mongal Singh was in hospital or 48 days for injuries, and thereafter had to be confined to his house for couple 1972 at the instance of Benoy chakraborty. 3. I have set out in detail the version of the petitioner as to what happened on the 11th of November, 1970. Because it is regarding that Incident that sanction has been granted by the Government which is impugned in this application and several contentions, both on question of law as well as question of. public policy, were canvassed before me centering round the controversy about the incident of the 11th of November, 1970. It must, however, be borne in mind that the version of Sri benoy Chakraborty respondent no. 6 and the elder brother of the two deceased is in variance with that of the petitioner. public policy, were canvassed before me centering round the controversy about the incident of the 11th of November, 1970. It must, however, be borne in mind that the version of Sri benoy Chakraborty respondent no. 6 and the elder brother of the two deceased is in variance with that of the petitioner. He is in his affidavit-in-opposition to this rule nisi affirmed on the 9th of September, 1977 has denied that different parts of Calcutta particularly the places mentioned aforesaid were highly affected by serious rowdy and antisocial activities or the lives of the citizens had become insecure or that the law and order situation was almost on the verge of collapse. According to him, a great part of the situation was created by certain intriguing elements who had some associates in the police administration who wanted, according to benoy Chakraborty, to discredit the then united Front Ministry as well as the leftists by staging or causing to stage murders and attacks on the lives and properties of common men, political personalities and also by encouraging rowdy and anti-social activities. He asserts that informations were increasingly coming to their knowledge, that a number of police personnel Were killed or caused to be killed by certain top people in the police administration itself who did not like, what according to Benoy Chakraborty, called infiltra-of weeks and according to the petitioner the injury sustained by him due to bullet shot has permanently impaired his left palm. During the encounter the police party also arrested two persons from the spot as being members of the said assembly and as participants in the said incident. One of them was Benoy chakraborty, the elder brother of the said two deceased and the other was manik Ghosh. The police party also seized the bombs and bhojali as aforesaid from the persons of the aforesaid two injured men and thereafter on a further search at the locale also seized, other incriminating articles like the; remnants of the bombs from the spot and sent the same to the Shyampukur police Station. The arrested persons were also sent to Shyampukur Police station under custody. Over the said incident a general diary was recorded at; shyampukur Police Station by Sub Inspector D. K. Basu and a First information Report was drawn up on the basis of the said general diary and eventually a criminal case being shyampukur Police Station Case. The arrested persons were also sent to Shyampukur Police station under custody. Over the said incident a general diary was recorded at; shyampukur Police Station by Sub Inspector D. K. Basu and a First information Report was drawn up on the basis of the said general diary and eventually a criminal case being shyampukur Police Station Case. No. 300 dated 11th of November, 1970 under Sections 148/149/307 Indian Penal code read with Sections 3 and 5 of the Explosives Substance Act and section 25 (1) (a) and Section 27 of the Arms Act was started against the said benoy Chakraborty and others, after obtaining the requisite sanction of take prescribed authorities under the Explosive Substance Act and the Arms Art and the said case is pending trial. The said criminal case which is numbered as C. R. Case No. 105 of 1972 and pending in the Court of the learned 12th Metropolitan Magistrate, Calcutta. The said trial has been stayed by the high Court by its order passed in criminal Revision Case No. 632 of on of left elements in the police force. The incidents out of which the present proceedings have originated were also one of such incident when the petitioner headed a group of police officers in order to kill out of hand a police constable ranjit Chakraborty because he was suspected to have affiliation with the cpi (M). Benoy Chakraborty asserts that the evidence is that when Ranjit chakraborty deceased raised his hands in surrender and cried out that he was a police man, the petitioner did not relent and shot him within a close range by shouting that he was "a dalal of CPI (M)" and was therefore required to be killed. According to Benny chakraborty it is true that a number of police personnel and a number of political workers had lost their lives. But he states that it is a matter for enquiry how many of these killings were caused by deep conspiring elements within the administration itself to create an atmosphere of terror so that "democratic movement" might be crushed. Benoy Chakraborty asserts that there are reasons to suspect that the sergeant, namely, Monoranjan Mukherjee was murdered by certain persns belonging to the police force itself. Benoy Chakraborty asserts that there are reasons to suspect that the sergeant, namely, Monoranjan Mukherjee was murdered by certain persns belonging to the police force itself. In so far as the murder of Sree Hemanta Basu is concerned, the case is still sub-judice and benoy Chakraborty refers to what he calls the judgment of one Sree haratosh Chakraborty, Judge, in which he is supposed to have said that the police had failed to trace the real offenders. Sri Benoy Chakraborty has also asserted that, snatching of and attempts to snatch of firearms, the incidents of throwing of bombs on petrol cars were encouraged and initiated by conspiring elements for the aforesaid purpose of creating a terror so that, democracy, according to him, might not survive. He states, further, that the law and order situation had worsened in the succeeding years due to what he calls the inept and politically motivated and tendentious actions of a sections of police officers like the petitioner. According to Sri Benoy chakraborty on 11th November, 1970, at about 9-45 p. m. the petitioner along with other police officers like sri Chitta Ganguly, Anil Moitra, Spew mongal Singh, Bimal Thakur and p. R. De and other officers came in front of 71, Shyampukur Street in three cars which came to a sudden halt there and the petitioner came out of the car and surrounded the two brothers who according to Benoy Chakraborty were gossiping in front no. 71, Shyampukur street and repeatedly shot at them within a close range causing deadly injuries. Benoy Chakraborty asserts that there is also evidence that these dying young men who were seriously injured were thrown into a jeep and the complainant in this case. Benoy chakraborty and Manik Ghosh were arrested and taken inside the same jeep. Inspite of prayer of Sri Benoy Chacraborty and Manik Ghosh that the injured should be taken to hospital the cars traversed the streets of North Calcutta in a leisurely fashion and halted in front of Rajarghat near Ganga and there waited for an hour. Another bullet, according to Benoy Chakraborty, was fined into Samir Chakraborty while he was lying seriously injured inside the jeep. Ultimately when the injured boys were taken to R. G. Kar Hospital, one had already died and the other was gasping and died on the operation tattle. Another bullet, according to Benoy Chakraborty, was fined into Samir Chakraborty while he was lying seriously injured inside the jeep. Ultimately when the injured boys were taken to R. G. Kar Hospital, one had already died and the other was gasping and died on the operation tattle. They were brought to the hospital at about 11-20 and 11-22 p. m. respectively whereas the distance of R. G. Kar hospital from the place of incident by car was not more than according to benoy Chakraborty, 3 or 4 minutes run, benoy Chakraborty further asserts that there is further evidence that there was' no incident on Shyampukur Street of bomb throwing on that day either before or after the shooting. Benoy Chakraborty further asserts that it was discovered in the commitment proceeding that shew Mongal Singh, Bimal Thakur, anil Moitra and C. R. Ganguly who had been committed to Sessions that Sri harsha Chakraborty, the father of the deceased as well as his sons were known to each of these police officers who have been named above including the petitioner, Sri Harsha Chakravorty having been Secretary of a Police Theatrical club called 'nataranga' which was frequented by Harsha Babu and his sons as well as these police officers. Deceased Ranjit was himself a police constable. He also denies about the recovery of bombs and bhojalis from any of these boys. I have in set out the rival versions of the parties in this case. 4. IT appears that on the 22nd of December, 1970, Benoy Chakraborty filed complaint on various allegations cognisance of which was taken by the additional Chief Presidency Magistrate and judicial enquiry was ordered. On the 18th of February, 1971, Sri R. P. Roy chowdhury, Presidency Magistrate calcutta made a report of judicial enquiry in respect of the complaint of respondent no. 6 against the petitioner, shew Mongal Singh, sergeant Bimal thakur, Anil Moitra and P. Dey after setting out the facts and after recording that the deceased Ranjit had disclosed that, he was a constable of the Calcutta police attached to the Port Police and deceased Samir had also stated that he was a N. V. F. man. The police officers abused them and thereafter the petitioner in this case shot at them from point blank range. The police officers abused them and thereafter the petitioner in this case shot at them from point blank range. Thereupon, in the report of Sree R. P. Raychoudhury it has been stated that Ranjit fled inside the adjoining house of Falguni Babu followed by one of alleged accused and another police officer. They dragged ranjit from the house and the said accused also shot at him. It is stated that the other officers also shot at him. Thereafter, the judicial enquiry report states that the allegations of the complainant have been corroborated by the complainant in the course of the evidence. The evidence of the different witnesses have been discussed by the said Sri R. P. Roy choudhury and he further records that the advocate for the "thus I find that a prima facie case u section 302/34 I. P. C. has been made out against all the 6 alleged accused persons. Secondly I hold that no sanction u/section 197 (1) Cr. P. C. is required for prosecuting alleged accused Nos. 1 and 6. "complainant submitted that the facts and circumstances of this case disclosed a cold blooded murder of the deceased brothers. The Judicial Magistrate has recorded that there should be no doubt according to the learned advocate for the complainant that both the deceased were fired at from close range and practically all the wounds were on the front pf the bodies. Sree R. P. Roychoudhury in his report after discussing the relevant evidence recorded, interalia, as follows : it must be remembered that the said judicial enquiry was ex parte in the sense that the present petitioner had no opportunity to participate in the said enquiry. On the 27th February, 1971, sri H. S. Barari, Additional Chief presidency Magistrate refused to issue process holding that sanction under section 197 (1) of the Code of Criminal procedure was required against the petitioner and Sri P. Dey, but process was issued against three other police officers. On the 13th of March, 1971, the commissioner of Police submitted a report to the Home Secretary. The said report is material in view of the contentions urged. The said report was about the case initiated at the instance of benoy Chakraborty against other police officers apart from the petitioner and sri P. Dey. On the 13th of March, 1971, the commissioner of Police submitted a report to the Home Secretary. The said report is material in view of the contentions urged. The said report was about the case initiated at the instance of benoy Chakraborty against other police officers apart from the petitioner and sri P. Dey. The Commissioner in his report dated 15th of March, 1971, to the home Secretary, interalia, observed after setting out the history of the case as follows : "the Officers against whom the process has been ordered are subordinate to D. C., North and A. C. North Suburbs and they only acted in good faith in obedience to the orders of their superiors. All the officers complained against acted in good faith in the exercise of the right of their private defence and also in due discharge of their lawful duties. Moreover, Inspector S. M. Singh and the three junior offence against whom process has been ordered to be issued, merely acted in obedience to the lawful orders of their superior officers present at the spot viz. D. C., North and a. C., North Suburbs. I, therefore, request that government may take immediate steps to move the Hon'ble High court for quahsing the proceedings against them and also to arrange for their defence at State cost by eminent and experienced lawyers as this involves the morale of the entire force. " 5. ON the 17th of March, 1971, the Commissioner of Police also forwarded to the Home Secretary in continuation of his report dated 13th March 1971, (i) copy of the order of the finding of Sri R. P. . Roy Chowdhury, Presidency Magistrate, (ii) Copies of the depositions of 11 witnesses examined in judicial enquiry and (iii) copy of the petition filed by Sri Benoy Chakraborty in the Court of the Additional Chief presidency Magistrate and (iv) a copy of the order sheet of the Additional chief Presidency Magistrate dated 27th of February, 1971, in which he had recommended the issue of the process against the four out of the six officers complained against in the petition of complaint. On the 11th of May, 1971, there was the report of the Asstt. Chemical Examiner That is regarding the case against Benoy Chakraborty about the proceedings under the Exploisves Act. It is perhaps not very relevant to refer to that, report in detail. On the 11th of May, 1971, there was the report of the Asstt. Chemical Examiner That is regarding the case against Benoy Chakraborty about the proceedings under the Exploisves Act. It is perhaps not very relevant to refer to that, report in detail. On the 12th of May, 1971, there was the report of the Inspector of Explosives. On the 12th of August, 1971, the respondent no. 6 Benoy Chakraborty filed a revision application against the order of Sri H. S. Barari in this Honble high Court which was opposed by the then advocate General of West Bengal on behalf of the present petitioner. Mr. Justice N. C. Talukdar on the 12th of august, 1971, dismissed the said revision. Application holding that the finding of sri H. S. Barari that sanction under section 197 (1) was necessary for proceeding against the petitioner v as correct. The said decision is reported in 76 C. W. N. page 326 (Benay v. State). It is not relevant, in my opinion, to refer to the said decision in detail at this stage for the controversy in this case. On the 9th of September, 1971 and on the 22nd of December 1971 respectively Harsha Nath Chakravorti, father of the two deceased boys submitted two applications for sanction to prosecute the petitioner to the Government. The said applications were refused by the government. But it appears that before that the Government on the 11th of september, 1971, had called for the report from the Commissioner and upon consideration of the report from the commissioner such sanction asked for against the petitioner was refused. Thereafter, on the 18th of February, 1972, respondent no. 6 made an application for certificate of fitness of appeal to the Hon'ble Supreme Court from the judgment of Mr. Justice Talukdar. On the 1st of March, 1972, the Government granted sanction to prosecute benoy Chakraborty and Manicklal ghose, inter alia, under section 7 of the explosive Act in respect of the incident of 11th of November, 1970, and which proceedings are pending as mentioned hereinbefore. On the 20th of March, 1972, Benoy's application for certificate of fitness of appeal to the Supreme court was refused by Mr. Justice talukdar. On the 20th of March, 1972, Benoy's application for certificate of fitness of appeal to the Supreme court was refused by Mr. Justice talukdar. Sri R. N. Chatterjee the then Commissicner of Police on 23rd of june, 1972, made a report which is a annexure to the affidavit of Biswarup mukherjee affirmed on the 8th of September, 1978, and filed in this proceeding. In the said report the Commissioner stated as follows : - "i place in the file a report of shri Bibhuti Bhusan Chakraborti, ips, Dy. Commissioner of Police, north Divn. along with a copy of the judgment delivered by Hon'ble mr. Justice N. C. Talukdar of the calcutta High Court on 12. 8. 71 in the Criminal Revision No. 164 of 1971 upholding the contention of the Addl. Chief Presidency Magistrate, Calcutta that sanction u/s 197 (1) of the Code of Criminal procedure is necessary for launching a prosecution against Shri Chakraborti D. C., North and Shri P. R. Dey, Asstt. Commr. who are appointed by the Govt. It will be clear from the report of the D. C., North that on 11. 11. 70 he along with his Asstt. Commissioner and other officers faced a determined and hostile mob armed with lethal weapons including firearms and bombs, indiscriminately firing and hurling bombs on the officers. One of the shots went through the palm of Inspector shri Shew Mangal Singh who was removed to hospital under orders of the D. C. North by the Asstt. Commissioner. Shri Chakraborti. however could not leave the place as the mob was determined on violent acts endangering the lives of the citizens and encircled the police party from three sides hurling bombs and firing on them. He dispersed the unlawful assembly applying the minimum force, necessary under the circumstance. He acted u s 128 of Cr. P. C. in good faith under colour of his office and used the minimum force required to disperse the violently aggressive mob. He and his officers showed exemplary courage and determination under extremely difficult circumstances and loyalty and faithfully discharged their onerous duties in the face of grave danger to their lives and limbs and to those of other citizens. Shri Chakraborty and his officers are, therefore, fully entitled to the protection under section 132 cr. He and his officers showed exemplary courage and determination under extremely difficult circumstances and loyalty and faithfully discharged their onerous duties in the face of grave danger to their lives and limbs and to those of other citizens. Shri Chakraborty and his officers are, therefore, fully entitled to the protection under section 132 cr. P. C. If a police officer is required to face a criminal trial for acts done by him in good faith in the discharge of his official duties and/or under orders of the superior officers and at the risk of grave personal danger including death, I feel the morale of the police force will be badly shaken. In my view no case for according sanction either under section 197 (1) Cr. P. C. has beer. made out. " 6. THE judgment of Mr. Justice talukdar was also placed on file. On the 11th January, 1973, the Supreme court rejected the application for special leave filed by the respondent no. 6 against the judgment of Mr. Justice Talukdar. On the 16th of March, 1973, the respondent no. 6 moved an application under Article 226 of the constitution namely, Matter No. 77 of 1973 under Article 226 of the Constitution challenging the refusal of the application for sanction made by the father harsha Chakraborty. In the said application one Nalinaksha Nanda, Dy. Secretary, Home, Government of West bengal, filed an affidavit in which it was stated that after careful consideration of the report and in the facts and circumstances of the case of the matter the Government had rejected the prayer for sanction to prosecute the petitioner and Sri P. Dey as the same was not justified. On the 26th of November, 1973, Rule in Matter No. 77 of 1973 was discharged as not pressed. On the 28th of November, 1973, the respondent no. 6 again applied for granting sanction under section 197 (1) of the Code of Criminal Procedure. On the 24th of December, 1973, the sanction was refused. In the order of the government it was stated as follows : - "with reference to your letter dated the 28th Nov. 1973, addressed to the Governor of West Bengal i am directed by order of the governor to say that the Governor has been pleased to refuse sanction to the prosecution of Shri B. B. Chakraborty, I. P. S. lately Dy. 1973, addressed to the Governor of West Bengal i am directed by order of the governor to say that the Governor has been pleased to refuse sanction to the prosecution of Shri B. B. Chakraborty, I. P. S. lately Dy. Commissioner of Police, Calcutta in case No. C/783 of 1970 in the court of Additional Chief Presidency magistrate, Calcutta, as the officers concerned acted in good faith in the discharge of their official duties and/or under the orders of the superior officers. " On the 29th January, 1974, the petitioner was awarded the President's award. He had also been awarded the president's Award in 1952. On the 28th of February, 1974 the respondent no 6 applied under Article 226 of the Constitution challenging the refusal of sanction by the order dated 24th of December, 1973. The said matter was numbered as Matter No. 88 of 1974. It is asserted by the petitioner that on the 3rd of May, 1974 the petitioner had arrested and/or had caused to be arrested various political leaders many of whom are Ministers to-day. On the 10th of October, 1974, Nalinaksha nanda, Deputy Secretary, affirmed in affidavit in Matter No. 88 of 1974 in this Hon'ble Court where the State government reiterated its previous staid on the ground of refusal to grant sanction. On the 30th of June, Mr. Justice a. N. Banerjee dismissed the application in Matter No. 88 of 1974. He held, interalia, that the granting of sanction was in the discretion of the Government and therefore, where the Government has exercised the discretion his Lord-ship saw no reason to interfere with the exercise of the discretion. After discussing the relevant provisions the learned Judge held that after the findings of this Court it could not be disputed that the present petitioner as well as Sri p. Dey had acted or purported to act in the discharge of their official duties in so far as the incident was concerned and as such sanction to prosecute them was necessary. He further held, interalia, relying on several decisions including the decision of the Judicial committee as follows : - "the aforesaid observation of the Supreme Court and Privy Council are in support of my finding that in the matter of refusal of sanction for prosecution under Section 197 (1)of the Code of Criminal Procedure, the Government has absolute discretion. The complainant petitioner cannot challenge such discretion. The complainant petitioner cannot challenge such discretion. He has no right on the basis of which he can ask for a direction by this court on the Government to grant sanction to him for the prosecution of the respondent Nos. 2 and 3 under Section 302/34 I. P. C. I, therefore, find that the application must be rejected. " 7. ON the 7th of May, 1976 respondent no. 6 preferred an appeal from the aforesaid order and judgment of hon'ble Mr. Justice Banerjee. The appeal was numbered as No. 184 of 1976. In June, 1977, the new ministry was installed in office. On the 11th of July, 1977 the respondent no. 6 Benoy Chakraborty made another application for grant of sanction. It is stated that on the 21st of July, 1977, an exparte order was obtained from the Hon'ble Mr. Justice S. C. Ghosh and the Hon'ble mr. Justice R. N. Pyne in the said appeal No. 184 of 1976 on mentioning by the learned standing counsel on behalf of the Government that the application for sanction would be considered by the Government according to law. Such mentioning according to the petitioner was made behind the back of the petitioner. The learned standing counsel of the Government was and is sri Arun Prokash Chatterjee who is now appearing for the complainant Sri Benoy chakraborty. I mention this point because a point of malafide has been made out of this.,on the 4th of August, 1977, sanction which is the subject matter of challegne in this application under Article 226 of the Constitution was granted. The said sanction reads as follows : - "whereas it has been made to appear to the Governor that on the llth November, 1970, at about 10 p. m., Shri Bibhuti Bhusan chakraborti, IPS, Deputy Commisioner of Police, Detective Department. Calcutta while functioning as the Deputy Commissioner of Police, north Division, Calcutta, being a public servant employed in connection with affairs of the State of west Bengal, along with Shri promode Ranjan De. the then Assistant Commissioner of Police, calcutta, since retired and several other police officers, went in front of premises No. 71, Shyampuknr. Street in the town of Calcutta in three vehicles including a jeep, cot down and surrounded two brothers, ranjit Chakraborty and. Samir chakraborty, sons of Shri Harsha chakraborty. the then Assistant Commissioner of Police, calcutta, since retired and several other police officers, went in front of premises No. 71, Shyampuknr. Street in the town of Calcutta in three vehicles including a jeep, cot down and surrounded two brothers, ranjit Chakraborty and. Samir chakraborty, sons of Shri Harsha chakraborty. that although Ranjit shouted that he was a Constable of the Calcutta Police and inspite of the fact that Samir was a N. V. G. trained boy, the said Shri Bibhuti bhusan Chakraborty fired at Ranjit at point blank range ; that thereafter, the said Shri bibhuti Bhusan Chakraborti along with the said Shri Promode Ranjan de and other police officers further fired several shots at the said two brothers, Ranjit Chakraborty and samir Chakravorty in succession; that this was done in furtherance of the common intention of all, to wit to cause death of the said two brothers, Ranjit Chakraborty and samir Chakravorty, or to cause such bodily injury or injuries on the persons of the said two brothers as were sufficient in the ordinary course of nature to cause death, or to cause such bodily injury or injuries to the said two brothers as the said Shri Bibhuti Bhusan Chakraborti had known to be likely to cause the death of the two brothers, or with the knowledge that the said firing of shots at close range at the two brothers was so imminently dangerous that it must in all probability for incur the risk of causing death or such injuries aforesaid; and thereby the said Sri bibhuti Bhusan Chakraborti committed, while acting and purporting to act in the discharge of his official duty, an offence punishable under section 302 read with section 34 of the Indian Penal Code, 1960; and WHEREAS the said Shri bibhuti Bhusan Chakraborti is a public servant and is arid at the time of commission of the alleged offence was employed in connection the affairs of the State of West Bengal and is not removable from his office save by or with the sanction of the State government; now, THEREFORE, in exercise of the power conferred by section 197 of the Code of Criminal. Procedure, 1973 (2 of 1974), the governor on a consideration of the facts and circumstances of the case, is pleased hereby to sanction the prosecution of the said Shri Bibhuti bhusan Chakraborti for the said offence punishable under section 302 read with section 34 of the Indian penal Code, 1860". 8. ON the 17th of August, 1977 order of suspension was passed against he petitioner. The said order is to the following effect : - "whereas on inquiry relating, to a criminal charge under section 302 read with section 34 of the Indian Penal Code against Shri Bibhuti bhusan Chakraborti, IPS, Deputy commissioner of Police, Detective department, Calcutta, is pending; and WHEREAS, the Governor having regard to the nature of the charge and the circumstances of the case considers it necessary that the said Shri Bibhuti Bhusan chakraborti should be placed under suspension, of the said criminal charge is connected with his position as a member of the Service. NOW, THEREFORE, in exercise of the power conferred by sub rule (3) of rule 3 of the All India services (Discipline and Appeal) Rules, 1969, the Governor is pleased hereby to place the said Shri Bibhuti Bhusan Chakraborti under suspension with effect from the date of service of this order upon him a and until the termination of all proceedings relating to the said charge. " On the 18th of August, 1977, a letter was written by the Deputy Secretary to the Government of west Bengal enclosing a letter dated 11th of July, 1977. from respondent no. 6 for sanction to prosecute. There was on the 24th of August, 1977, a letter written to the government demanding justice and on 1st of September, 1977, this application under Article 226 of the Constitution was moved and I issued a rule nisi. If is alleged that on or about 5th of September, 1977, at about 9-30 P. M. the petitioner received an advance copy of the affidavit filed on behalf of the respondent no. 6 wherein it was alleged that the Hon'ble Mr. Justice S. C. Ghosh and the Hon'ble Mr. Justice R. N. Pyne had been pleased to direct, interalia, the State Government to consider the application of respondent no. 6 which had been rejected by the memorandum dated 24th of December, 1973. 6 wherein it was alleged that the Hon'ble Mr. Justice S. C. Ghosh and the Hon'ble Mr. Justice R. N. Pyne had been pleased to direct, interalia, the State Government to consider the application of respondent no. 6 which had been rejected by the memorandum dated 24th of December, 1973. On 7th of September, 1977 the matter was mentioned on behalf of the petitioner before the Division Bench consisting of Mr. Justice Ghosh and Mr. Justice pyne whereupon their Lordships stayed the completion of the drawing up of the exparte order dated 21st of July, 1977 in Appeal No. 184 of 1976. On 8th of September, 1977 the Division Bench passed the following order. : - "the previous order made by us dated the 21st of July, 1977. is recalled. Having heard the parties we pass the following order : -The appeal is treated as on the day's list. Mr. Samar Dutt, learned counsel appearing on behalf of the appellant states that in view of the fact that the State through Mr. Advocate General has stated that they would consider the matter of granting sanction to prosecute the respondents Bibhuti Chakraborty and P. R. De he does not want to press the appeal. In view of that statement the appeal is dismissed. This order is made without prejudice to the rights and contentions of the parties including the contention of mr. Deb who is appearing on behalf of the two respondents to the appeal, namely, Bibhuti Chakraborty and p. R. De that the Government has no longer any power to grant sanction for prosecution and also without prejudice to the contention of the learned Advocate-General that the government has such power. The advocate-General states that the state has already granted sanction but if any such sanction has been granted, the State will not be able to rely on the order passed by us on the 21st July, 1977, in support of such sanction, neither shall the said order validate such sanction. " 9. IT is not necessary to refer to the subsequent events. But it is necessary to mention that in Appeal No. 134 of 1976 referred to hereinbefore the standing Counsel namely, Sri Arun prokash Chatterjee had appeared on behalf of the State Government both on the first occasion on 5th of September, 1977 as well as on 8th of September, 1977. IT is not necessary to refer to the subsequent events. But it is necessary to mention that in Appeal No. 134 of 1976 referred to hereinbefore the standing Counsel namely, Sri Arun prokash Chatterjee had appeared on behalf of the State Government both on the first occasion on 5th of September, 1977 as well as on 8th of September, 1977. Sri Chatterjee is now the advocate appearing on behalf of the respondent no. 6 the private complainant. I mention this fact because an argument has been based on malafide on this basis on behalf of the petitioner with which I shall deal. 10. IN order to complete the faciual narration it is necessary to stated that one main point urged on behalf of the petitioner has been that on two previous occasions the sanction sought for under section 197 of the Code of Criminal Procedure had been refused after consideration of all relevant facts and after proper application of mind by the appropriate authority. In order to substantiate the allegation that there was some finding by the Judicial Magistrate that there was a prima facie case had been made out against the petitioner was in the knowledge of the Government when it dealt with the question of sanction on previous occasions on behalf of the petitioner it was urged that a complaint was filed by the respondent no. 6 against, interalia, the petitioner and cognisance was taken by the Additional Chief Presidency Magistrate and judicial enquiry was issued under Section 200 of the Code of Criminal Procedure. This fact the petitioner asserts, was known to the Government. On the 18th of February, 1971, Sri R. P. Roychoudhury made an exparte judicial enquiry holding, interalia, that a prima facie case under section 302/34 of the Indian Penal code has been made out against the six accused persons and that no sanction under section 197 (1) of the Code of criminal Procedure is required for prosecuting the alleged accused. But on the 27th of February, 1971, the Additional Chief presidency Magistrate considered the report of the Enquiring Magistrate and refused to issue summons against the petitioner and Sri P. Dey holding that sanction under section 197 (1) of the Code of Criminal Procedure was required for prosecuting them. The report regarding other accused was accepted by the magistrate and summons was issued against them. The report regarding other accused was accepted by the magistrate and summons was issued against them. On the 13th of March, 1971, report of the Commissioner of police was made to the Home Secretary regarding incident of the 11th of February, 1970, and the institution of a prosecution against the respondent no. 61 and Sri Maniklal Ghosh under Section 148/149/307 of the Indian Penal Code read with Section 3 and 5 of the Explosives Act, 1921 and Section 25 (1) (a)of the Arms Act and the judicial enquiry by Sri R. P. Roy choudhury and his recommendation for issue of summons against all these police officers including the petitioner and the order of the Additional Chief Presidency Magistrate, On the 17th of March, 1971, the Commissioner of Police had sent to the Home Secretary in continuation of his report date 13th of March, 1971 the following documents :- (i) Copy of the order and finding of R. P. Roy Choudhury, Presidency Magistrate; (ii) Copies of depositions of 11 witnesses examined in the judicial enquiry; (iii) copy of the petition filed by the respondent no. 6 in the court of the Chief Presidency Magistrate and (iv) copy of the order sheet o f the Additional Chief Presidency Magistrate dated 27th of February, 1971 in which he had recommended the issue of summons against same. All these facts were known to the Government when o n previous occasions the Government had refused to grant sanction. On 12th of August, 1971, Mr. Justice Talukdar dismissing the Criminal Revision application by the respondent no. 6 against the order of the additional Chief Presidency Magistrate mentioned the finding of Sri R. P. Roy choudhury that there was a prima facie case. Thereafter, Harsanath, the father of the two deceased made an application for sanction to prosecute the petitioner mentioning in the second paragraph of the said application the finding of Sri R. P. Roychoudhury of a prima facie case and that no sanction was a necessary. On the 22nd of December, 1971, there was a second application by the father for sanction asking for prosecution in which the finding of Sri r. P. Roychoudhury was referred to. On 23rd of June, 1972, there was a report of Sri. R. N. Chatterjee, Commissioner of Police, the report together with the report of the Deputy commissioner, North, the judgment of Mr. Justice Talukdar was placed on file. On 23rd of June, 1972, there was a report of Sri. R. N. Chatterjee, Commissioner of Police, the report together with the report of the Deputy commissioner, North, the judgment of Mr. Justice Talukdar was placed on file. In matter No. 77 of 1973 in the petition. filed the finding of Sri. R. P. Roychoudhury was also referred to. In the affidavit-in-opposition filed on behalf of the: state Government by the Deputy Secretary it was reiterated that the State; government had considered the matter very carefully and after careful consideration of all facts and circumstances did not find the prayer of Sri Harsanath chakraborty for the sanction for prosecution to be justified. On the 24th or december, 1973, sanction was again refused, as in the opinion of the Government, the officers concerned were accenting good faith in discharge of their official duties and under the order of the superior officers. In Matter No. 88 of 1974 also there was reference to the report of sri R. P. Roychoudhury and in opposition the Government had reiterated that; all aspects of the matter had been considered carefully by the Government: and the Government was not inclined to grant sanction in this matter. It may incidentally be mentioned that both in the Matter No. 77 of 1973 and in Matter no. 88 of 1974 where the refusal to grant the sanction by the previous government were challenged and were defended on behalf of the Government one Sri Nalinaksha Nanda describing himself as the Deputy Secretary, Home (General Adm.) had affirmed the affidavits on behalf of the respondent authorities. In those affidavits as I have indicated before it was urged that the government had duly considered all aspects of the matter and had thought it is to refuse to grant sanction. There is no evidence as to whether Sri Nanda is still in Government service. He has of course made no affidavit in the instant proceedings before me. In the present proceeding one Sri Biswarup Mukhopadhya who is the Secretary to the Govt. of West Bengal, Home Department, has affirmed the affidavit-in-opposition. In the said affidavit-in-opposition Sri mukherjee has asserted in paragraph 10 that: "it appears from the records that in taking the said decision the report submitted by the learned presidency Magistrate, 11th Court, calcutta was not at all considered by the authorities concerned. of West Bengal, Home Department, has affirmed the affidavit-in-opposition. In the said affidavit-in-opposition Sri mukherjee has asserted in paragraph 10 that: "it appears from the records that in taking the said decision the report submitted by the learned presidency Magistrate, 11th Court, calcutta was not at all considered by the authorities concerned. " The decision referred to is the decision of the Government on the first application refusing to grant sanction. He has reiterated that the Government took the previous decisions without considering the relevant materials. He has asserted that in the instant case in granting the sanction the Government has considered all the materials and further he has stated: "i state that the present Government does not want to shield any person, irrespective of the position he may hold against whom there is prima facie case that he committed an offence under the provisions of law for the time being in force. " Therefore apart from mentioning that the policy of the present Government is not to shield anyone from the process of law against whom there is prima facie evidence of commission of offence (he deponent of the affidavit on behalf of the Government has said that the previous Government did not consider all the relevant materials. I have set out the averments and the assertions made in the two previous proceedings on behalf of the Government in which it was categorically asserted that the government had considered all the relevant factors and had fully considered the matter. It is apparent that both these statements cannot be correct. Either of the assertions must be incorrect. Whether such incorrect assertion was made in any case and if so in which case and whether it has been done deliberately or negligently, voluntarily or under some form of compulsion does not fall for my consideration in this case in view of the several contentions that I will consider here. I only make a note of the state of assertions that are made to the Court by the responsible government officers who are supposed to be independent and upon whose statements the Courts are expected to act. 11. IN order to complete the narration of events relevant for the contentions urged in this case I must mention that one of the allegations of the petitioner in the instant case, is that the present action was taken out of malice against the petitioner. 11. IN order to complete the narration of events relevant for the contentions urged in this case I must mention that one of the allegations of the petitioner in the instant case, is that the present action was taken out of malice against the petitioner. It was asserted in paragraph 26 that during 1970-71 in discharge of his official duties the petitioner had either himself arrested or had caused the arrests of many persons some of whom belong to the communist party (Marxist) and other parties which have now formed the government of West Bengal. The petitioner has also asserted that in 1974 some persons who are now Ministers in west Bengal Government had also been arrested by him. He has, therefore, submitted that the parties forming the present Government in West Bengal bear grudge against the petitioner for such arrests of the person and the order in question has been procured at the instance of such party and Ministers out of malice and ill-will against the petitioner. The petitioner had not been originally supplied the copy of the letter of the respondent no. 6 upon which the present sanction had been granted. But subsequently on request being made the petitioner had obtained such a copy and in that letter after stating out ' the version of the respondent no. 6 as to the events of 11th of November, 1970, the respondent no. 6 has stated, interalia, as follows : - "i say that the Governor evidently did not apply his mind to the matter because the letter dated 3rd. December, 1973 showed that my application for sanction had been forwarded to the Chief Secretary for necessary action. Secondly, the letter dated 24th December, 1973 itself shows that the sanctioning authority was not itself sure whether the officers concerned acted in the discharge of their official duties or under the order of their superior officers. In any event, in view of the change in the Government and the declared policy of the present government that no offences, though committed by highest Police Officers, would not be beyond the arm of the law, I venture to make this fresh application for sanction for prosecution of the said Bibhuti chakraborty alias B. B. Chakraborty and P. De. In any event, in view of the change in the Government and the declared policy of the present government that no offences, though committed by highest Police Officers, would not be beyond the arm of the law, I venture to make this fresh application for sanction for prosecution of the said Bibhuti chakraborty alias B. B. Chakraborty and P. De. As the grant or withholding or sanction for prosecution has been held by Courts to be within the absolute discretion of the appropriate government, I submit that the earlier refusal of sanction should not be stand in the way of grant of fresh sanction after perusal of facts of the case. The earlier refusal of sanction was evidently done by the Governor without applying his mind to the facts of the case as would appear from the letter dated 3rd December and 24th Dec. 1973. I pray that your Government: would apply its mind to the facts: of the case as stated above including the report of Shri R. P. Roy chowdhury the then Presidency magistrate of the 11th Court who had concluded after examining witnesses and perusal of records that a prima-facie case u/s 302/34 had been made out against the accused persons including Bibhuti Chakraborty and P. De. I request the State Government through you therefore to accord sanction to the prosecution of the said "bibhuti Chakraborty alias B. B. Chakraborty, Dy. Commissioner North at the material time and at present Dy. Commissioner Detective Department and P. De assistant Commissioner North suburb at the material time and at present Security Officer, Great Eastern Hotel. " When it was denied in the affidavit-in-opposition that there was any malafide attitude of the present Government against the petitioner in paragraph 37 in the affidavit-in-reply affirmed on the 22nd of September, 1977, the petitioner has reiterated that some of the leaders arrested on 3rd of May, 1974, included the present Chief Minister and other ministers such as Sri Jatin Chakraborly, sri Bhakti Bhusan Mondal, Sri Prasanta sir and Sri Sambhu Ghosh. He has annexed the report of the incident of 3rd of May, 1974, which report he has made annexure to the said affidavit. He has annexed the report of the incident of 3rd of May, 1974, which report he has made annexure to the said affidavit. It appears form the said annexure that there was violation of section 144 of the Code of Criminal procedure and such violation led to the arrests of several persons and the lists of persons arrested include some of the influential members of the present cabinet. 12. IN the background of the aforesaid facts the present sanction as mentioned hereinbefore has been challenged on several grounds. But before I consider the grounds upon which the sanction dated 8th of August, 1977, has been challenged it may be material to set out the provisions of Section 197 of the Code of Criminal Procedure. As the proceedings against the petitioner in respect of which sanction has been obtained by the impugned order were initiated before 1973 it would be material to refer to Section 197 of the Code of criminal Procedure, 1898. which was in the following terms : - "197. Prosecution of Judges and public servants.- (1) When any person who is a judge within the meaning of section 9 of the Indian Penal code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognisance of such offence except with the previous sanction- (a) in the case of a person employed in connection with the affairs of the Union, of the Central government; arid (b) in the case of a person employed in connection with the affairs of a State, of the State Government. (2) Power of Central Government or State Government as to prosecution.- The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the court before which the trial is to be held. " As is well known that the Code of Criminal Procedure has undergone several substantial major alterations by act 2 of 1974 namely the Code of Criminal Procedure, 1973. " As is well known that the Code of Criminal Procedure has undergone several substantial major alterations by act 2 of 1974 namely the Code of Criminal Procedure, 1973. But the only material alteration for our present purpose is that while under the previous provision sanction was necessary only for prosecution against the person who was continuing in Government Service, under the new Code sanction is necessary also in respect of persons who are or were in the government service at the time when the offence was committed. 1have set out the impugned sanction dated 4th of August, 1977, which authorizes the prosecution of the petitioner in respect of offences punishable under Section 302 read with Section 34 of the Indian Penal code, 1860. Section 302 of the Indian penal Code, 1860 provides that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. Section 34 of the Indian Penal Code stipulates that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. My attention was also drawn on behalf of the petitioners to provisions of Section 141 of the Indian penal Code, 1860 which defines an unlawful assembly and Section 146 which define rioting and Section 148 deals with rioting, armed with deadly weapons. My attention was also drawn in this case to Section 193 of the Code of Criminal Procedure, 189 and Section 132 of the Code of Criminal Procedure 1898 which provides- "132. My attention was also drawn in this case to Section 193 of the Code of Criminal Procedure, 189 and Section 132 of the Code of Criminal Procedure 1898 which provides- "132. Protection against prosecution for act done under this chapter.- No prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any Criminal Code, except with the sanction of the State government; and (a) no Magistrate or police-officer acting under this Chapter good faith, (b) no officer action under Section 131 in good faith, (c) no person doing any act in good faith, in compliance with a requisition under Section 128 section 130, and (d) no inferior officer, or soldier, sailor or airman in the armed forces, doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby committed an offence : provided that no such prosecution shall be instituted in any criminal Court against any officer or soldier, sailor or airman in the armed forces, except with the sanction of the Central Government. " Reliance was also placed on Section 128 of the Code of Criminal Procedure, 1898, about the circumstances in which use of civil force to disperse crowd would not constitute offence. Similarly, section 127 of the Code of Criminal procedure authorises a Magistrate or officer-in-charge of police-station to command any unlawful assembly or an assembly of five or more person likely to cause disturbance of the public peace, to disperse and it shall thereupon be the duty of the members of such assembly to disperse accordingly. 13. ONE of the main contentions urged in support of this application was that in view of the previous decision of the Government refusing to grant sanction to prosecute the petitioner after consideration of all relevant and material facts respondent no. 6 had no right to apply again on the 11th of July, 1977, for grant of fresh sanction. It was urged that the Government had also no right to re-consider the matter once it had considered the matter and by the refusal of the grant of sanctions immunity had accrued in favour of the petitioner. It was submitted that the Government decision was challenged in Court and the government's refusal to grant sanction was sustained by the judgment of Mr. It was submitted that the Government decision was challenged in Court and the government's refusal to grant sanction was sustained by the judgment of Mr. Justice A. N. Banerjee referred to hereinbefore as justified and therefore the Government must accept that the law had upheld such refusal to be justified and the Government is obliged to obey the law. These points really proceed on the principles analogous to the principles of res judicate. It was urged that the government is not entitled to take inconisistent stand even in different proceedings and permitting the Government to take inconsistent stand in legal proceedings would be against public policy. In order to support the contention that the Government cannot take inconsistent stand even in subsequent or different illegal proceedings reliance was placed on certain observations of Sir Asutosh mookerjee in the case of Bhaja, Chowdhury v. Chuni Lal Marwari 5 Calcutta law Journal, page 95 at page 105. There the learned Judge observed as follows : - "i must consequently hold that the appellant was a proper party to the present suit. It must also be further held, that even if he was not a proper party, it was not competent to the appellant to take the objection at the present stage of the proceedings. No objection was taken by him to the frame of the suit in the court of first instance; he did not ask to be dismissed from the suit; on the other hand, he accepted the challenge of the plaintiff, and after a trial on the merits, succeeded in obtaining a favourable decision from the Subordinate Judge. Upon appeal, the District Judge has taken a different view of the evidence. He cannot, because he has been defeated, rightly ask for a reversal on the ground that the issue was not triable in this action. This view is supported by the decision of this Court in Hare Krishna v. Robert Watson and Co. and was also indicated in my judgment in Jaggeswar v. Bhuban Mohan, which makes mention of some of the possible exceptions to the general rule. The question is not one of jurisdiction, but rather of the form of the litigation and the scope of its enquiry ; in other words, to use the language of Mr. Justice Gray in Hefner vs. N. W. Mutual Life insurance Co. The question is not one of jurisdiction, but rather of the form of the litigation and the scope of its enquiry ; in other words, to use the language of Mr. Justice Gray in Hefner vs. N. W. Mutual Life insurance Co. the question, whether this issue should be determined in the present suit to enforce the mortgage or in a separate action, was a question of multifariousness or of convenience, affecting the discretion only and not the jurisdisction of the Court. I agree entirely with the observations of sherwood, C. J. in Bensieck vs. Cook (4), in which that learned judge remarked as follows: "having assumed the role of being a proper and necessary party defendant, having pleaded to the merits, she cannot, after being cast in the suit, now change front, and insist that error occurred in making her a party defendant. Courts of justice cannot be trifled with in this way. Parties litigant are not allowed to assume inconsistent position in court, to play fast and loose, to blow hot and cold. Having elected. to adopt a certain course of action, they will be confined to that course which they adopt. " See also bigelow on Estoppel, 5th edition, p. 678 and 717. In my opinion, it is too late for the appellant to raise any objection to the frame of the suit. It follows, therefore, that the second ground taken on his behalf cannot be supported. " 14. RELIANCE was also placed on certain observations in the case of hemanta Kumari Debi vs. Prasanna kumar A. I. R. 1930 Cal page 32, where it was held that inconsistent stand by a litigant should not be permitted or allowed by the Court not only in the successive stages of the same suit but also in another suit other than the one in its depositions was taken up. It is true that a litigant should not be permitted to play fast and loose with the court and to induce the Court to take one decision on one basis and then change that basis later on. It is true that a litigant should not be permitted to play fast and loose with the court and to induce the Court to take one decision on one basis and then change that basis later on. But in this case, in my opinion, however factually inconsistent stand of the Government seems to appear which as I have mentioned in my opinion to be unfortunate there is no inconsistent legal stand on behalf of the Government between the stand taken in Matter No. 77 of 1973 and Matter No. 88 of 1974 on one hand and the present stand of the Government. The legal stand taken on behalf of the Government has always been that grant or refusal of grant of sanction under Section 197 (1) of the Code of criminal Procedure, either, old or new, is within the domain of executive discretion of the Government and so long as such discretion has been properly by the previous Government and furthermore because of the policy decision of the present Government that high government officers should not be given protection or shield against due process of law if in a particular case there is prima facie ground for proceeding against him. This Court in the judgment of Mr. Justice A. N. Banerjee referred to hereinbefore which was affirmed in appeal as the appeal was not pressed it is this view that has been upheld by the Court. I have set out hereinbefore the relevant portion of the judgment of Mr. Justice Banerjee and it is not necessary for me to reiterate the said reasoning here again. I am, therefore, unable to accept the contention urged on behalf of the petitioner that the Government is taking an inconsistent stand in the subsequent proceeding which is not permissible in law. I must as a logical sequence of the above finding hold that by the stand taken in this application the government was not disobeying the law unless I come to the conclusion that sanction once granted or refused cannot be reviewed by the Government subsequently, a contention which will require separate consideration later on. For the reasons mentioned before I must therefore hold that in this case there is no evidence of any different legal stand by the Government from the stand taken on the previous occasions. For the reasons mentioned before I must therefore hold that in this case there is no evidence of any different legal stand by the Government from the stand taken on the previous occasions. The most vital question that, however, requires consideration is the question, whether, the decision of the government one way or the other in respect of grant or refusal to grant sanction under Section 197 of the Code of criminal Procedure exhausts the power of the Government to consider the question again. That involves the consideration of the question, about the' nature of the power under that section. It is necessary, therefore, to consider the ambit of power under sub-section (1) of Section 197 of the code of Criminal Procedure. I have noticed the section. It does not in terms lay down any ' conditions for granting such sanction. But the scope and the circumstances under which such sanction can be granted have, been the subject matter of judicial interpretation in several decisions. In the case of Afzalur Rahman, vs. Emperor a. I. R. 1943, Fed. Court page 18, the federal Court had occasion to consider this question. There the Federal Court reiterated the broad proposition that the provision of Section 197 (1) were engrafted to prevent frivolous prosecutions against public servants in discharge of their official dudes. The question was again considered by the Judicial committee in the case of Gokulchand dwarkadas vs. The King A. I. R. 1948 privy Council page 82. There in respect of certain offences alleged to have-been committed under. Cotton, Cloth and Yarn (Control) Order (1943), The privy Council observed at page 84 of the report as follows : - "upon this state of the evidence, the respondent has argued that the view which has prevailed in the High Court of Bombay is wrong and that a sanction which names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened is a sufficient compliance with cl. 23 of the said Order. In their Lordships' view, in order to comply with the provisions of cl. 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since cl. In their Lordships' view, in order to comply with the provisions of cl. 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction. the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the government have an absolute discretion to grant or withhold their sanction. They are not, as the high Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their lordships' view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of cl. 23. Under that clause sanction has to be given to a prosecution for the contravention of any of the provisions of the Order. A person could not be charged merely with the breach of a particular provision of the order; he must be charged with the commission of certain acts which constitute a breach, and it is to that prosecution that is, for having done acts which constitute a breach of the Order that the sanction is required. In the present case there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the Order, and the sanction is invalid. " 15. In the present case there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the Order, and the sanction is invalid. " 15. THE effect of the aforesaid decision of the judicial committee is that the sanction contemplated under section 197 of the Code of Criminal procedure is essentially a discharge of the executive discretion by the Government and could be exercised, if there is prima facie evidence on record, upon policy consideration. The said provision has been incorporated as noted in the decision of the Federal Court in the case of Afzalur Rahman vs. Emperor (supra) to protect certain public officers while discharging their duties as such officers from frivolous prosecutions. On behalf of the petitioner however reliance was placed on the observations in the case of Manhar lal Bhogilal Shah vs. State of Maharashtra 1971 (2) S. C. Cases, page 119 in aid of the submission that the aforesaid view of the Judicial Committee does not wholly operate on the field after the coming into operation of the constitution of India. There the Supreme court was concerned with certain questions relating to the Sea Customs Act 1871 and whether the same infringed article 14 of the Constitution. The supreme Court had to construe Section; 167 (8) and 167 (81) of the Sea Customs act. 1878 and examine the question whether the same was discriminatory, before the Supreme Court the appellant had contended that the offences of smuggling of goods and in particular the goods with which he had been charged could be dealt with by the customs authorities by proceedings under Section 167 (8) of the Sea Customs Act, 1878 as well as in the alternative or in addition by instituting a prosecution in. a "criminal Court by filing a complaint under Section 187-A read with Section 167 (81) of the Act, It was urged that the former could result only in the imposition of fiscal penalty exceeding three times the value of the goods and confiscation of the goods themselves. The latter could result in a sentence of imprisonment upto two years or fine or both. The latter could result in a sentence of imprisonment upto two years or fine or both. Thus it had been left to the unfettered and unguided discretion of the custom authorities to proceed against certain persons under section 167 (8) and others under Section 167 (81) or under both the sections. In a large number of cases no prosecutions were filed at all and proceedings under Section 167 (8) alone were taken which resulted in imposition of penalty. This leads to discrimination. It was held by the Supreme Court that while deciding whether a complaint should be instituted for an offence which would covered by both items (8) and (81)under Section 167 a Customs Officer must take into account the enormity and magnitude of the contravention and the evidence which is available. It is possible in certain cases that evidence might not be sufficient for taking the matter to a Criminal Court and in view of the entire facts a complaint might not be lodged for contravention of offence under item (81) but in all cases the Customs Officers had to act in a reasonable and bonafide manner and they could not just discriminate between similar cases according to their whim and fancy. It had to be borne in mind that a discretionary power was not necessarily a discriminatory power and the accuse of the power was not to be easily assumed where the discretion was vested in the Government and not in a minor official. It was further held that it could not be said that any unguided discretion or power had been conferred the nature of which could come within the prohibition of Article 14 of the Constitution. There in that case the supreme Court noted at pages 123 and 124 of the report that there are many acts which require sanction. But there was no indication as to the circumstances under which such sanction could be granted or withheld. The Supreme Court mentioned that one of such provision came up for examination before the judicial Committee in the case of Gokul Chandra Dwarkadas Murarka vs. The king (supra) just referred to hereinbefore. But there was no indication as to the circumstances under which such sanction could be granted or withheld. The Supreme Court mentioned that one of such provision came up for examination before the judicial Committee in the case of Gokul Chandra Dwarkadas Murarka vs. The king (supra) just referred to hereinbefore. Thereafter setting out the relevant portion which I have indicated before the supreme Court observed that it was argued that if the same wide latitude was given to the Custom Officers as mentioned in Section 187a they could even import political or economic consideration for not filing a complaint although a person was liable to criminal prosecution for an offence under Section 167 (81)of the Sea Customs Act. The Supreme court observed:- "we consider it unnecessary to pronounce, with respect on the correctness or otherwise of the observations. We have no doubt that the authority concerned are expected to take into account the changed conditions obtaining after the enforcement of our Constitution which guaranteed fundamental rights including Article 14. They are bound to examine the facts of a particular case and then decide whether prosecution should be launched or net. " 16. BASING upon the aforesaid observations on behalf of the petitioner it was urged that the view of the Judicial committee that sanction could be granted or withheld under Section 197 of the code of Criminal Procedure on politial or economic grounds no longer was good law after the coming into operation of the constitution of India. I am, however, unable to accept this submission. Firstly, it has to be noted that the Supreme Court actually declined to express any opinion on the correctness or otherwise of the aforesaid view of the Judicial Committee. Therefore, it is not proper to say that the Supreme Court had doubted the aforesaid observations of the Judicial Committee. Secondly, what the Supreme Court meant was, in may opinion that exercise of discretion by the Government must be subject to adherence to principle embodied in Article 14 of the constitution. In exercising sanction the government could not act in a discriminatory manner. Secondly, what the Supreme Court meant was, in may opinion that exercise of discretion by the Government must be subject to adherence to principle embodied in Article 14 of the constitution. In exercising sanction the government could not act in a discriminatory manner. But to say that the government could not act in a discriminatory manner is a different proposition from saying that the Government could not exercise its executive discretion on political or economic consideration; on this aspect I do not find any doubt e pressed by the Supreme Court in the decision just referred to above, of the view to the Judicial Committee. The question of granting sanction by Government under Section 197 (1) of the Code of Criminal Procedure was considered by the Supreme Court in the case of R. R. Chan v. State of U. P. A. I. R. 1962 s. C. 1573. The Supreme Court observed that the first part of Section 197 (1)of the Code of Criminal Procedure of 1898 with which the Supreme Court was concerned provided a special protection, interalia, to public servants who were not removable from their offices save by or with the sanction of the State government or that the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which the protection has taken is that before a criminal court may take congnisance of any offence alleged to have been committed by such public servant a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there was prima facie case for starting the prosecution and the prima facie satisfaction had been interposed as a safeguard before the actual prosecution commences. Relying on the decision of the Fedral Court in the case of Afzalur rahman v. Emperor (supra) the Supreme Court noted that the object of Section 197 (1) was to save public servants from frivolous prosecutions. The Supreme Court observed at page 1531 of the report that before granting sanction the appropriate authorities must be satisfied that there is prima facie case for starting the prosecution and this prima facie satisfaction had been interposed as a safeguard before the actual prosecution commences. Counsel for the petitioner, however, sought to urge that policy consideration in granting sanction was irrelevant. Counsel for the petitioner, however, sought to urge that policy consideration in granting sanction was irrelevant. For this proposition he drew ray attention to certain observations of lord Justice Farwell in the case of Rex. v. Board of Education 1910 (2) King's bench, page 165 at page 181. There the court of' Appeal in England held that a local authority had no power under the Education Act, 1902, to differentiate, in the matter of teachers equally qualified and teaching the same subjects, between the salaries payable in the provided and non-provided schools as such. There the Lord Justice after referring to the decision of the Board observed as follows : - "if this means that the Board were hampered by political considerations I can only say that such considerations are pre-eminently extraneous and no political consequence can justify the Board in allowing their judgment and discretion to be influenced thereby. " The said observation were made in a different context and in respect of exercise of different type of power. If by the said observations it was meant to convey that an Executive government in discharge of its discretionary function could not exercise such discretion on a partisan consideration then I respectfully agree, but if in exercise of any executive discretion in respect of his executive function the government acts on political or social consideration them, in my opinion, such exercise of discretion cannot be condemned in a judicial review of the exercise of that power. If the Lord Justice by the aforesaid observations noted above meant to observe that policy considerations on grounds of economic and social factors could not play any part in respect of the exercise of executive discretion by the Government in discharge of its executive function then I respectfully disagree. 17. THE nature and the type of discretion required to be exercised under section 197 of the Code of Criminal. Procedure has been reviewed in several decisions and my attention was drawn to some of them which I shall presently note. In the case of In the master of kalagava Bapiah I. L. R. 27 Madras (1904). Page 54 Mr. Justice Bhashyam ayyangar observed that sanction accorded by Government under Section 197 was not null and void for the reason that no notice was given to the accused to show cause why it should not be given. In the case of In the master of kalagava Bapiah I. L. R. 27 Madras (1904). Page 54 Mr. Justice Bhashyam ayyangar observed that sanction accorded by Government under Section 197 was not null and void for the reason that no notice was given to the accused to show cause why it should not be given. It was a matter left to the discretion of government whether such opportunity should be given to the person concerned before sanctioning his prosecution. The Court, further, noted that there was a marked distinction between the classes of offences dealt with in section 195 clauses (b) and (c), and those dealt with in section 197. The learned Judge was dealing with Criminal Procedure code, 1898. The Court granting sanction under Section 195 (b) and (c) did so in connection with offences committed in or in relation to any proceeding in such Court and the Court, therefore, acted in its judicial capacity in granting the sanction or legal evidence. But the government, in according or withholding sanction under section 197 for the prosecution of a public servant in respect of an offence alleged to have been committed by him as such public servant acted purely in its executive capacity and the sanction need not be based on legal evidence. In the case of Ramdass v. K. M. Sen, 59 C. W. N. page 209 a Division bench of this Court was concerned with a complaint filed on the authority of the state Government under Section 34 of the Industrial Disputes Act, 1947, and the Court observed that distinction had to be made between cases where the statute provided that no court should take cognisance of an offence except with the previous sanction of the Government and the case where the statute provided that no Court should take cognisance of an offence save on a complaint made by or under the authority of Government. The discretion to be exercised by the appropriate Government in filing a complaint under Section 34 of the Industrial disputes Act, 1947 was not the same discretion as the appropriate Government was required to exercise in granting or refusing sanction where sanction was a condition precedent to the filing of a complaint. The discretion to be exercised by the appropriate Government in filing a complaint under Section 34 of the Industrial disputes Act, 1947 was not the same discretion as the appropriate Government was required to exercise in granting or refusing sanction where sanction was a condition precedent to the filing of a complaint. The discretion to be exercised by the appropriate Government in filing the complaint itself or in authorising someone else to file a complaint was the discretion that a private person would exercise in filing a complaint, a discretion based on it might be on pure ground of expediency and nothing else. But in according sanction to a complaint certain amount of judicial discretion had to be exercised in deciding whether the fact disclosed a prima facie case. At page 215 of the report the Division Bench observed that the discretion need not be purely judicial but certain amount of judicial discretion had to be exercised, in deciding whether the facts disclosed a prima facie case. But the Court observed that it might be mixed up with other grounds. It was sought to be urged on behalf of the petitioner that on the authority of the aforesaid observation that in exercising power of granting" sanction the executive authority acted quasi-judicially at least. But in my opinion, the observations read in this proper light do not warrant such a view. As has been noted by the Judicial Coimmittee as well as the Supreme Court that the purpose of sub-section (l) of section 197 of the Code of Criminal procedure, both old and the new, is ho prevent public servants from frivolous prosecutions in respect of works done while discharging the functions in their official capacities and for this purpose to be satisfied that there was prima facie case against the accused. 18. THE satisfaction of the executive authorities about existence of a prima facie case must be arrived at objectively, in the sense that there must be some materials upon which a reasonable person could come to the conclusion that there was prima facie case. 18. THE satisfaction of the executive authorities about existence of a prima facie case must be arrived at objectively, in the sense that there must be some materials upon which a reasonable person could come to the conclusion that there was prima facie case. In that light: it might be said that the function of granting sanction involves a certain amount of judicial discretion but as has been re-iterated by the Supreme court as well as the Privy Council that it is an executive function and other considerations political and social policy might enter into the object of granting sanction. For instance even though the government may be satisfied in a particular case that there was prima facie evidence against the accused for prosecution but because the general law and order situation in the country or the morale in the police force makes a prosecution inappropriate at a particular point of time, the Government in such cases might refuse to grant sanction, it could not be said then that the Government acted improperly. In the case of china Chendrayya v. Subbarayudu a. I. R. 1923 Madras, page 338 Mr. Justice Wallace observed that discretions under Section 197 of the Code of criminal Procedure was more of a nature of executive than judicial action and he, further, observed that there was no irregularity in not recording reasons. No notice is required to be given to the accused. In the case of Matajog Dobey v. H. C. Bhari A. I. R. 1956 S. C. page 44, the Supreme Court observed speaking about the Code of Criminal procedure, 1898 that whether sanction was to be accorded or not was a matter for the Government to consider. The absolute power to accord or withhold sanction conferred on the Government was irrelevant and foreign to the duty cast on the court trying the case which, is the ascertainment of the true natures of the act and in this respect the Court: had to see whether it could take cognisance of the case without the previous sanction and for this purpose the court has to find out if the act complained! against was committed by the accused while acting or purporting to act in the discharge of official duties. against was committed by the accused while acting or purporting to act in the discharge of official duties. But in this case as I have noted before one of the main points urged on behalf of the petitioner was that sanction could not be granted subsequently in the manner purported to have been done when on two previous occasions such sanction had been refused by the Government and there are no fresh facts as such coming to the light of the Government and further that such refusal to grant sanction though challenged in a court of law had been upheld by the court of law. On this aspect of the matter also several decisions were referred to which I shall presently note before I try to formulate the principles which should be applicable in a case like this. On behalf of the petitioner reliance was placed on the decision of the Supreme Court in the case of I. T. O. v. Nawab Mir Barkat Ali Khan Bahadur 97 I. T. R. page 239. The principles enunciated in that case; in my opinion, are wholly inapplicable to the facts and circumstances of the present case. There the Supreme Court was dealing with reopening of assessment under Section 148 of the Income-Tax Act, 1961 read with clause (a) of Section 147 of the said Act. As is well known reopening of completed assessment under the income-Tax Act can only be done on fulfilment of certain conditions. Unless there are materials justifying such reopening of such assessment the income-tax authorities cannot reopen a completed assessment under the Income Tax Act. The power of reopening under the Income Tax Act is a conditional power to be exercised upon the fulfilment of certain conditions. But principles applicable for deciding whether such conditions have been fulfilled or not are inappropriate in case of granting sanction under section 197 of the Code of Criminal procedure which gives the executive authority the discretion to grant the sanction or not in discharge of its executive function and there are as such no conditions stipulated in the section. Reliance was also placed on the decision of the Supreme Court in the case of Harbhajan Singh v. Karan Singh A. I. R. 1966 S. C. page 641. Reliance was also placed on the decision of the Supreme Court in the case of Harbhajan Singh v. Karan Singh A. I. R. 1966 S. C. page 641. There the Supreme Court was dealing with order made under Section 42 of the East Punjab holdings (Consolidation and Prevention of Fragmentation) Act, 1948 that the supreme Court after referring to the provision. of the said section observed that there was no provision in the East punjab Holdings Consolidation and Prevention of Fragmentation) Act granting express power of review to the State government with regard to an order made under Section 42 of the Act The supreme Court held that in the absence of any such power the Director (Consolidation of Holding) could not review his previous order dismissing the application of the petitioner under Section 42. Hence the subsequent review order of the Director was ultra vires and without jurisdiction. Now, Section 42 of the said Act was in respect of orders passed for a scheme prepared or confirmed or re-patriation made by any officer under this Act and such scheme or order or repatriation could not be varied by the proviso to the said section without giving the party interested to appear and opportunity of being heard. The nature of the power contemplated under Section 42 of the said Act was clearly judicial or quasi-judicial at least. Such a power could not be considered on the same principle as a power under Section 197 of the Code of Criminal Procedure which is an executive discretion vested upon the competent authority. Reliance was also placed on a decision of the supreme Court in the case of Western India Watch Co. v. Its Workmen A. I. R. 1970 S. C. 1205. There the Supreme court was dealing with the expression industrial Dispute. There, the Supreme court held that though the Government could make a reference to the Industrial tribunal of an industrial dispute "at any time" the existence of an industrial dispute or apprehension of such dispute put a limit on the power to be exercised by the Government. The existence of an industrial dispute or the apprehension of an industrial dispute is the condition precedent and that controlled the uncontrolled expression "at any time". Therefore, in the opinion of the Supreme court, the power was conditional and unless. the condition was fulfilled the power could not be exercised. The existence of an industrial dispute or the apprehension of an industrial dispute is the condition precedent and that controlled the uncontrolled expression "at any time". Therefore, in the opinion of the Supreme court, the power was conditional and unless. the condition was fulfilled the power could not be exercised. I am not concerned here with exercise of any such conditional power. Therefore, the aforesaid observations in my opinion, have no application. Reliance was also placed on certain observations of the Supreme court in the case of P. N. Thakershi v. Pradymansinghji A. I. R. 1970 S. C. 1273. There the Supreme Court reiterated that the power under Order 47, Rule 1 of the Code of Civil Procedure authorised the Court to review its order, but there was no inherent power to review under the law. The Supreme Court was dealing with the order passed under Section 63 of the Saurashtra Land Reforms act, 1951. Now, the nature of the power as was noted by the Supreme Court in paragraph 4 of the judgment under that section is more of a judicial or quasi-judicial nature and cannot be eompared with powers of executive nature. 19. ONE important decision which requires careful consideration upon which reliance was placed on behalf of the petitioner is the decision in the case of mohinder Singh v. Chief Election Commissioner A. I. R. 1978 S. C. page 851. There the Supreme Court observed that when a statutory functionary made an order based on certain grounds its validity must be judged by the reasons mentioned therein and could not be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning might by the time it came to the Court on account of challenge get validated by additional grounds later brought out. The Supreme Court, further, noticed that vested rights could not be divested. Reliance was placed also on certain observations appearing at page 870 of the report where the Supreme Court reiterated that natural justice was a principle which should be applicable even in case of executive function where vested rights were involved. The Supreme court was in that case considering Article: 324 of the Constitution of India and certain provision of the Representation of People Act, 1951. The Supreme court was in that case considering Article: 324 of the Constitution of India and certain provision of the Representation of People Act, 1951. It is true that when vested rights are sought to be divested, reasons must be recorded and opportunity must be given to the person concerned to make representation. It is also true that when an order is passed on certain ground it cannot be later on added to or explained. But the application of these principles must depend upon the nature of the power and the manner of such exercise of power. In this connection it may be borne in mind that the validity of sanction granted under Section 197 of Code of Criminal Procedure would not deter the Tribunal from deciding all issues which would be open to a person against whom such sanction has been granted. This is a principle which has to be borne in mind in considering the question of applicability or otherwise of the principles of natural justice in the instant case in the sense of giving a hearing to the petitioner concerned before the grant of sanction. In the connection reference may be made to the observations in the decision of chandra S. Patnak, v. Joyesh Ch. Dey 74 (C. W. N. page 816, paragraphs 25 and 26. This view was also renerated in the decision of Mr. justice Taludar which 1 have already mentioned in the instant case where the refusal to grant sanction had been challenged on the previous occasion. The said decision is reported in the case of Benoy Chakarborty v. The State 76 C. W. . N. page 326, where the learned Judge observed that the intention of the legislature is not to set an official above the common law. If he commits a common offence he has no peculiar privilege. But if one of his official acts is alleged to be an offence no prosecution will be allowed without sanction for the obvious reason that otherwise official action would be beset by private prosecutions. My attention was also drawn to certain observations of the Privy Council in the case of Nakkuda Ali v. M. F. De S. Jayaratne 54 c. W. N. page 883, and reliance was placed on the observations appearing at page 889 of the report. The same decision is also reported in 1951 Appeal cases page 56. My attention was also drawn to certain observations of the Privy Council in the case of Nakkuda Ali v. M. F. De S. Jayaratne 54 c. W. N. page 883, and reliance was placed on the observations appearing at page 889 of the report. The same decision is also reported in 1951 Appeal cases page 56. It was sought to be urged on behalf of the petitioner that in exercise of the executive power in granting sanction under Section 197 of the Code of Criminal Procedure the sanctioning authority must act reasonable and in a case where rights of persons were affected it was not possible to act reasonably without acting quasi-judicially in consonance with the principles of natural justice. In other words, it was sought to be urged that fair play which is the real essence of the application of the principles of natural justice enjoined that people whose rights would be affected must be heard. Now about the question of the application of the principles of natural justice I shall have occasion to deal with later when I will formulate my conclusions. On the other hand, on behalf of the respondents it was contended that if there was prima facie evidence against the accused then refusal to grant sanction would be acting malafide. In this connection reliance was also placed on certain observations of the Supreme Court in the case of shrikrishna v. Tikara v. state of M. P. A. I. R. 1977 S. C. page 1691. There the Supreme Court was dealing with an order under the Mines and Minerals (Regulation and Development Rules, 1957. In that case first notice under rule 27 (5) of the said rule was issued by the Collector on 15. 10. 73 directing lessee to remedy certain breaches. The lessee's reply admitted breaches by giving explanation and praying for their condonation. The State Government, however, by its order cancelled the contract. There was the second notice by the Collector under Rule 27 (5) of the said rules on 22. 5. 74 in respect of the same breaches subsequent to the first notice. The question arose whether the first notice had been waived. In revision under Rule 55 of the said rule Central government confirmed the State government's Order of cancellation, It was held that the doctrine of waiver was not attracted to the facts of the said case. 5. 74 in respect of the same breaches subsequent to the first notice. The question arose whether the first notice had been waived. In revision under Rule 55 of the said rule Central government confirmed the State government's Order of cancellation, It was held that the doctrine of waiver was not attracted to the facts of the said case. There was no intentional abandonment which was essential for waiver. Indeed, the Collector could not have knowledge of the cancellation of the lease by the state Government. Moreover, once the lease had been cancelled it was beyond the collector's power to bring the lease back to life. It was also held by the supreme Court that the order of cancellation could not be held to be bad on the score of breach of natural justice. The fact that in the said notice by the collector personal hearing was not offered did not mean that the failure personally to hear the petitioner was contravention of the canon of natural justice which could not be petrified in the rigid moulds. These are flexible and turn on the facts and circumstances of each case. The Supreme Court, further, dealing with the discretionary power under article 136 of the Constitution observed that it was not within the normal province of the court to demolish discretionary exercise of power in the absence of special vitiating features. 20. THESE are some of the decisions to which my attention was drawn for the principles that would be applicable to the consideration of the question whether the subsequent sanction with which I am concerned in the instant application is valid. Before I deal with the principles of law that should guide a situation of this type, in my opinion, it would be appropriate to discuss some aspects of facts and record my conclusions in respect of these in so far as these are relevant for the present purpose. One of the allegations that was urged in support of this application was, as I have indicated before, that the State Government had acted malafide. In support of this contention it was argued that the petitioner in the instant case had to, in the discharge of his official duties, arrest many members of the C. P. I. (M) which form an important element in the Left Front government which controls the Cabinet of the State to-day. In support of this contention it was argued that the petitioner in the instant case had to, in the discharge of his official duties, arrest many members of the C. P. I. (M) which form an important element in the Left Front government which controls the Cabinet of the State to-day. It was, therefore, urged that the members of the C. P. I. (M) in the Left Front Government had a grudge or a grievance, though according to the petitioner unjustified, against the petitioner. It was, secondly, urged that in 1974 the petitioner had occasion to arrest several members of the present Cabinet. I have already indicated before the said allegation had been made. The said allegation is to the effect that there was a defiance by some of the political leaders including many members of the present Cabinet of the provisions of section 144 of the Code of Criminal Procedure and therefore in discharge of his official duties the petitioner had to arrest many of the members of the present government including the Chief minister. It was, therefore, urged that the present Government was inimical]y disposed of towards the petitioner and, therefore had granted sanction on the petition of the respondent no. 6 even though on identical grounds the previous Government after consideration of relevant factors had refused to grant sanction. It is difficult to accept this allegation of malafide attitude towards the petitioner. Political leaders in India belonging to all political parties are in the habit occasionally to defy the provisions of law and court arrest as part of their political movement or strategy. This has been a tradition if it can be so called from the days of our national Movement, before Independence. It is difficult to imagine that the political leaders who deliberately seek or want to court arrest for indicating to the people that they are defying the law on account of their political tactics or strategy would bear any inimical or hostile attitude towards the members of the police force. If one can take into account ordinary human phychology one would feel that if a man deliberately goes to court arrest and he is not arrested by the police force he would rather feel insulted and humiliated. If one can take into account ordinary human phychology one would feel that if a man deliberately goes to court arrest and he is not arrested by the police force he would rather feel insulted and humiliated. Therefore, from the mere fact that for the defiance of the provision of Section 144 of the code of Criminal Procedure some of the members of the present Government had been arrested, it does not, in my opinion, follow that the members of the left Front Government were inimical against the petitioner for such conduct. Similarly, it is well known that at one point of time some members of the c. P. I. (M) had been arrested by the orders of the then Government in power. The Government Officers including police officers had to carry out the government orders or the Government policy at that time. It would be difficult to attribute to political beings any sense of grievance against those who are instruments in carrying out the policy of the Government in power at the relevant time. If, however, there was any particular evidence that a particular police officer or a Government officer had gone out of his way to help the Government in power to victimise its opponents or to unearth any secret activities of the opponents beyond his normal duties then perhaps different considerations might arise and a particular inimical attitude may be attributed to those who suffer at the hand of those Government or police officers. There are such instances in the history of our pre-independence national movement when some police officers or government officers had gone out of their way to terrorise and victimise our freedom fighters. There are instances where members of our national movement had sought to take vengeance against such officers. That is not the case here nor is there any allegation to that effect. There is no evidence that the petitioner had played any special role in counteracting any special activities of the members of the C. P. I. (M). Therefore, on this aspect of the matter also malafide cannot be inferred against the petitioner on the part of the present government. Another aspect of the question of malafide which. was urged in this case was that during the proceedings before the Division Bench of this Court in Matter No. 88 of 1974 sri. Therefore, on this aspect of the matter also malafide cannot be inferred against the petitioner on the part of the present government. Another aspect of the question of malafide which. was urged in this case was that during the proceedings before the Division Bench of this Court in Matter No. 88 of 1974 sri. Arun Prokash Chatterjee who was and still is the Standing Counsel of the state Government appointed after coming into office of the new Government had appeared on behalf of the state before the Division Bench and assured the Division Bench, according to the petitioner improperly because it was exparte, that the application of the respondent no. 6 upon which the present sanction had been granted would be cosidered by the Government in accordance with the law. The Cout was induced to pass certain orders which were leter on recalled at the instance of the petitioner when the same came to the knowledge of the petitioner as I have indicated before. In the previous proceedings as well as in the Criminal Court sri Arun Prokash Chatterjee had been appearing for the complainant who was seeking sanction from the Government. Indeed in the present writ application sri Chatterjee is appearing on behalf of the respondent no. 6 who sought and had obtained the Government consent. It was therefore urged that the complainant's counsel acted both for the complainant and the Government and therefore influenced the Government and which resulted in the sanction being granted. Such conduct was characterised as malafide on the part of the government. From a traditional point, of view of professional standard to which some perhaps firmly still adhere, it would have been desirable for the same lawyer not to appear for the seeker of sanction and the grantor of such sanction. But there is no evidence that sri Chatterjee as lawyer for the respondent no. 6 had influenced the decision of the Government and obtained for the respondent no. 6 the sanction which is impugned in this application. Members of the Cabinet are responsible public men elected by the citizens; of this country and in the absence of any more cogent and reliable evidence it would be improper in my opinion to infer malafide conduct on the part of the Government in power in such matters. 6 the sanction which is impugned in this application. Members of the Cabinet are responsible public men elected by the citizens; of this country and in the absence of any more cogent and reliable evidence it would be improper in my opinion to infer malafide conduct on the part of the Government in power in such matters. It has been said and reiterated often that the onus of proving malafide rests, heavily on those who allege such malafide conduct. I am however conscious that it is difficult and indeed often impossible to prove actual malafide conduct in fact by positive evidence because those who act in a malafide manner do not normally keep any evidence harmful to them from which malafide can be established. Malafide must therefore in most cases have to be Inferred from the probability of events, situation and conduct. But such inference must be drawn with caution and more or less as an irresistible conclusion from certain conduct of certain persons in certain situations. Judged in that light I am unable to accent the position that in this case such irresistible conclusion can be drawn in respect of such an important decision by the present government simply because lawyer for the complainant at one point of time appeared for the Government and now holds an important position as Government legal Advisor. It is, therefore, not possible to deduce any malafide conduct on the part of the Government. There is another aspect of the matter on the question of malafide. I have set out before the version of the respondent no. of 6 about the incident of 11th November, 1970. According to him the petitioner had shouted against the two brothers killed "that you are the dalals of C. P. I. (M). " This version however is entirely denied by the petitioner. It would be inappropriate in my opinion to express, at this stage in this application as to the corerctness or otherwise of any one of these version. But an argument was made that in view of the nature of the attitude of the petitioner against the members of the c. P. I. (M) as indicated by the said allegation of the respondent no. 6 the members of the present Government were induced to grant the sanction on the third occasion upsetting the two previous decisions of the Government. 6 the members of the present Government were induced to grant the sanction on the third occasion upsetting the two previous decisions of the Government. There is no evidence before me that the members of the present Government or those who have taken the decision in granting the sanction accepted or proceeded on the version of the respondent no. 6. It would, therefore, be inappropriate to deduce malafide on the part of the Government in granting sanction for this reason, 21. THERE is another aspect of the matter urged on behalf of the petitioner it was sought to be urged that the previous Government on the two previous occasions when sanction had been refused and which refusal have been upheld by the court of law when challegned had considered all the relevant facts and circumstances. On behalf of the respondent learned Advocate General had sought to urge that there was no evidence that the previous government on the two previous occasions had considered all relevant matters and indeed the learned Advocate General sought to urge that the report of Sri R. P. Roychoudhury holding that there was primafacie evidence against the petitioner had not been brought to the notice of the Government or had been considered properly by the government. It is difficult to accept, the position that the Government was not aware on the two previous occasions about the report of sri R. P. Roychoudhury. I have already set out the facts in this judgment before from which it would be abundantly clear that the government had before it the report of sri R. P. Roychoudhury. It is also not possible to accept the position taken by the learned Advocate General that even though the Government had the report of Sri R. P. Roychoudhury the Government had not applied its mind. In the: normal course of events it has to be presumed that the Government had considered all relevant factors and one of the most important relevant factors in this connection would be the report of Sri r. P. Roychoudhury. In the: normal course of events it has to be presumed that the Government had considered all relevant factors and one of the most important relevant factors in this connection would be the report of Sri r. P. Roychoudhury. It is true that the letter dated 24th of December, 1973 refusing the sanction on the second occasion which I have set out before in this judgment does give scope for certain amount of criticism because so far as the petitioner was concerned it could not, be said that he was, in respect of the action he took on the 11th of November, 1970, acting under order of the superior officers. Because he was the superior officer present on the spot. That reason might however be applicable in case of Sri P. Dey and other police personnel. I must, therefore, hold that the Government had all the relevant materials on the previous occasions and had applied its mind for the decisions it had arrived at. I must further hold that there is no new evidence as such available to the new Government when the impugned sanction was granted. 22. UPON these facts, it is therefore, now necessary to consider whether the action of the Government which is under challenge can be said to be illegal. On behalf of the petitioner it was urged that reasons had to be indicated for granting the sanction. The Judicial committee in the case of Gokul Chandra dwarkadas Murarka v. The King (supra) observed that it was desirable that the facts should be referred to on the face of the sanction but that was not essential. In the instant case I have set out the order granting the sanction. There the facts upon which the Government has granted sanction have been set out, that is to say the allegations of the respondent no. 6 and the prima facie findings of Sri R. P. Roychoudhury. On behalf of the petitioner, however, counsel for the petitioner urged, that in this case there should have been a speaking order in the sense that the order granting sanction should have stated in the Government order for the court to judge its validity specially while the Government was reversing the decision of the previous Government on two previous occasions. On behalf of the petitioner, however, counsel for the petitioner urged, that in this case there should have been a speaking order in the sense that the order granting sanction should have stated in the Government order for the court to judge its validity specially while the Government was reversing the decision of the previous Government on two previous occasions. It was stated that as the Government has not stated in the impugned order granting sanction that any new facts had come to its light and had not indicated any reason why the Government was reversing its previous decision the order granting sanction was bad. In the letter of the respondent no. 6 it was stated that the Left Front government had taken a decision that government Officer should not be protected if there are prima facie evidence against them of commission of offence and must face the process of law. The respondent Government in the affidavit in-opposition in answer to this, rule nisi has also reiterated that policy decision of the Government. I have already referred to the affidavit of Sri Biswarup Mukhepadhya affirmed on 8th of September, 1977 where at paragraph 13 he has stated "i state that the present Government does not want to shield any person, irrespective of the position he may hold against whom there is a prima facie case that he committed an offence under the provisions of law for the time being in force. " sri Mukhopadhaya has further reiterated that the present sanction was granted pursuant to the said policy decision of the Government. Counsel for the petitioner, however, relying on the observations of the Supreme Court in the decision in the case of Mohinder Singh v. Chief Election Commissioner (supra)submitted that the validity of the order must be judged by the reason as mentioned in the order and could not be supplemented by fresh reasons in the shape of affidavit or otherwise. Therefore he urged that the Government not having stated this reason in the order could not advance this theory of new policy decision in support of this order. I have already dealt with the contention urged on behalf of the petitioner that policy consideration could not form part in the decision making process for the exercise of discretion by the Government. I have already dealt with the contention urged on behalf of the petitioner that policy consideration could not form part in the decision making process for the exercise of discretion by the Government. I have already stated that according to me that in the matter of executive discretion where such policy consideration is not contrary to any law or is not taken in a partisan manner such policy consideration can be factor in the exercise of executive discretion. In this case there is no evidence of any partisan attitude in this policy consideration. Before me no evidence was alleged or argued where a government Officer against whom there are allegations of commission of offence but who was friendly to the members of the present Government in Respect of such officer sanction had been sought and has been refused. If my attention could have been drawn to such partisan manner of the exercise of the discretion then other considerations might have arisen. About the wisdom or otherwise of this policy which has been stated in the affidavit of Sri Biswarup Mukhepadhaya I shall deal later. I am concerned at this stage to consider whether not having stated its policy consideration in the impugned order granting sanction the Government was competent to rely on such policy consideration. As has been explained by the decision of the privy Council referred to hereinbefore sanction is given on certain facts and the facts upon which such sanction is given must appear from the order. Those facts do appear from the order in question in this case. The real sons for making that order can in my opinion be explained even though not stated in the order when the validity of the grant is challenged in an appropriate proceeding in the Court. The validity of the sanction as I have said must depend upon the reasons upon which it is based. But if the motivations for the sanction is challenged can be explained in the form of statements made in the affidavit to answer to the challenge. For the aforesaid reason not being stated in the impugned sanction the impugned sanction was bad. The main legal question that requires to be considered in this case whether the Government has power to review or revise its previous order about the sanction. For the aforesaid reason not being stated in the impugned sanction the impugned sanction was bad. The main legal question that requires to be considered in this case whether the Government has power to review or revise its previous order about the sanction. Learned Advocate General submitted before me that Section 197 of the Code of Criminal Procedure was to accept the argument that the reason not being stated in the impugned sanction the impugned sanction was bad. not a sword but merely a shield to protect the Government Officers from certain prosecutions and proceedings in certain circumstances. Left to myself having regard to the nature of the power given under Section 197 of the Code, I should have thought that the same was neither a shield nor a sword but rather a veil and that veil may, by the Government at an opportune and appropriate time be lifted provided the act of the government is bonafide and not arbitrary and based upon relevant considerations. Reference may be made to Section 15 of the Bengal general Clauses act. Learned Advocate General drew my attention to Section 21 of the General Clauses Act, 1897. But in my opinion perhaps the appropriate section would be Section 14 of the General clause Act, 1897 which empowers any power conferred to be exercised from time to time as occasion requires. Section 197 of the Code of Criminal Procedure, as I said before, is a kind of veil to prated the Government Officers from frivolous prosecutions. There must be material upon which from which a reasonable man can draw the conclusion that there was a prima facie case for trial. But even in situation where there is prima facie case for trial the particular policy of the Government which the government is entitled to take having regard to various factors which enter in to policy consideration of the Government the Government may decline to grant sanction at a particular point of time. As I have indicated before that a particular situation in the country or particular situation in a particular force or administration may make it inopportune or inappropriate for the government because by policy consideration to allow prosecution against government officers even though there are prima facie evidence against them. Therefore, in my opinion, it is not the question of reviewing or reversing the decision of the previous Government. Therefore, in my opinion, it is not the question of reviewing or reversing the decision of the previous Government. The power is always there in the Government to lift the veil or remove the protection even though the Government had refused to lift that veil on earlier occasions, provided the action of the government as mentioned before is taken on relevant considerations, that is to say, that there are material prima facie upon, which reasonable man could come to the conclusion that the accused may be guilty of the offence alleged. It is an executive discretion of the government and it may be taken from time to time provided the same decision is not taken arbitrarily or in a malafide manner. 23. IN this case in my opinion, therefore, the grant of sanction under section 197 of the Code of Criminal procedure is an exercise of the executive discretion of the Government. Such discretion can be exercised upon policy consideration provided such policy considerations are not contrary to the law of the country or are not partisan considerations. Such decision, however, must be taken upon relevant materials and the relevant material for granting sanction under Section 197 of the Code of criminal Procedure are the existence of materials from which prima facie case against the accused can be inferred. All these grounds are fulfilled in the instant case namely in the sanction granted on the 4th of August, 1977. There is, however, one aspect of the matter upon which counsel for the petitioner placed strong reliance namely that when on previous occasions sanction had been refused it was improper to grant sanction now without hearing the petitioner or giving him an opportunity to make his representation. Sanction does not establish a guilt of the accused; that has to be as I have indicated before proved by the clue process of law in the appropriate proceedings. In the matter of executive exercise of discretion where such discretion has not been exercised in a partisan manner but on a policy consideration the petitioner or the person against whom such a sanction is sought has nothing to say. The accused or the person alleged to have been committed the offence cannot form the policy for the Government. In the matter of executive exercise of discretion where such discretion has not been exercised in a partisan manner but on a policy consideration the petitioner or the person against whom such a sanction is sought has nothing to say. The accused or the person alleged to have been committed the offence cannot form the policy for the Government. If the petitioner had alleged before me that there was apart from the policy consideration the said policy was not applied so far as other government servants are concerned in the matter of sanction in a partisan manner then perhaps an opportunity should have been given to the petitioner. But there is no such allegation in the facts of this case. As the Supreme Court has reiterated that the principles of natural justice cannot be petrified or fitted into rigid moulds these are flexible and turn on the facts and circumstances of each case. In this case when the Government has stated categorically that the government has taken the decision to grant sanction on the basis of a new policy consideration which is not contrary to the laws of the land I cannot hold that the principles of natural justice were breached in not giving the petitioner a hearing before the grant of sanction. All defaces would be open to the petitioner at the trial if he has to face one as a result of this sanction. 24. BUT before I conclude this aspect of the matter I must observe that counsel for the petitioner urged before me and I must say not without justification that there is apparent contradiction in the Government policy advanced in the instant case and in other matters. He drew my attention to reported statements in the newspapers that persons guilty of committing serious crimes of murders and loots are not being prosecuted or prosecutions against them are being withdrawn or sought to be withdrawn at the instance of the government because such alleged offences were committed for alleged political motives. If commission of crimes by private citizens on the plea that these were committed for political purposes could induce the Government not to prosecute or to seek withdrawal prosecutions against them, then, how is it logical to expose Government servants to prosecutions in this manner ? If commission of crimes by private citizens on the plea that these were committed for political purposes could induce the Government not to prosecute or to seek withdrawal prosecutions against them, then, how is it logical to expose Government servants to prosecutions in this manner ? Counsel for the petitioner drew my attention to the fact that serious acts of sabotage, serious acts of murder, arson and loots against several persons alleged to have committed these have been sought to be withdrawn by the Government because these persons were alleged to have committed those crimes for political purposes. If crimes committed for political purposes are to be treated as immune from the process of law then if the allegation of the respondent no. 6 that the petitioner killed his two b brothers because he considered them to be the dalas of C. P. I. (M), why should be exposed to the due process of law on the plea that Government does not want to protect a person who has committed an offence even if he is holding the Government office? There is good deal of criticism that there is apparent contradiction and the stand seems illogical. It is, therefore, apparent according to counsel for the petitioner that the so called policy decision was an unwise decision and improper decision. I cannot say that counsel for the petitioner was not to a very large extent night in this criticism. Furthermore, it appears to me that the policy consideration upon which the present sanction has been sought to be deiended seems to be unwise because if Government officers get the feeling that with the every change of Government there would be possibility of exposer to trials or prosecution then perhaps the morale of the Government and police force would be hampered. But the Constitution has not empowered me to judge the wisdom of the policy of the executive but has only authorised me to ensure the legality of the Government action. I am not, I am afraid, the conscience keeper of the country, but only empowered to examine the legality of action taken. That is how I view the scope of judicial review of the executive action. I am not, I am afraid, the conscience keeper of the country, but only empowered to examine the legality of action taken. That is how I view the scope of judicial review of the executive action. Whatever grave doubts I may entertain about the wisdom of the policy upon which this sanction has been granted as I do not find any illegality in the exercise of discretionary power in the discharge of the executive function by the Government I am unable to interfere with the santion granted. I am also not sure whether the respondent no. 6 and the father of the two deceased persons are doing justice to the dead because if what they allege to be true then these two boys have died for the cause they believed. Now to extract vengeance upon those who are alleged to have murdered these boys would be robbing them of the glory of martyrdom. Demanding punishment and vengeance would be really condemning the dead to the death again, because it is said, those who die for a cause normally do not die though they physically perish. But if vengeance is taken in lieu of their death then the glory of their death vanishes and they really die. But if these boys died under the circumstances mentioned by the petitioner then perhaps the motivations of the respondent no. 6 in the back ground of his political attitude as disclosed in his affidavit to this rule is understandable. 25. BUT 1 am not concerned with what course the respondent no. 6 should take and on the wisdom of the Government in acting on the course sought by the respondent no. 6. So long as the action of the Government is not illegal l cannot interfere. In the premises, this application fails and is accordingly dismissed. The rule nisi is discharged. . Interim order if any is vacated. There will, however, be no order as to costs. Stay as prayed for is granted till 4 weeks after the Christmas vacation. Rule discharged no order as to costs.