A. K. BHATTACHARYA, J. ( 1 ) THE hearing stems from an application under sections 397/401 read over section 482 Cr. PC filed by the petitioner praying for setting aside the order dated 31. 12. 96 passed by learned Chief Judicial Magistrate, Howrah in Complaint Case No. C. 368 of 1993. ( 2 ) THE circumstances leading to the above application are that the petitioner filed a complaint being registered as Complaint Case No. C. 368/93 before the Court of learned Chief Judicial Magistrate, Howrah on 01. 04. 93 inter alia disclosing offences under sections 323/324/342/ 506/504 IPC committed by O. P. , Nos. 1 and 2. After taking cognizance of the offence and examining the petitioner, the learned Magistrate directed S. P. , Howrah to direct one Additional S. P. , Howrah to hold an enquiry and submit report by 27. 05. 93. In Criminal Revision No. 829 of 1993 preferred against the said order by the petitioner, this Court directed the learned Magistrate to proceed in accordance with the law subsequent to the stage of examination of the complainant after giving him an opportunity to examine his witnesses, if any. The learned magistrate after examination of the witnesses by order dated 10. 09. 93 again requested S. P. , Howrah to direct a competent officer to hold an enquiry and to submit a report by 03. 12. 93. As S. P. , Howrah failed to submit any report, the petitioner filed an application on 05. 08. 95 praying for issuing process against the accused persons which was turned down on 02. 09. 95 holding that he had no jurisdiction to modify or vary the order passed by the Court earlier. It was reported by S. P. that it refers to Howrah P,s. 'case No. 58 dated 8. 3. 93 under sections 147/148/448/341/337/338/325/357/427 IPC instituted by the police against the complainant and seventeen others where charge sheet had been submitted. As the said report did not disclose any investigation in regard to the allegations made in the complaint, the learned magistrate himself took up inquiry on 31. 12. 96 and after examination of the materials on record held that though a prima facie case under sections 323/504 IPC has been made out, but he could not take cognizance of the offence in view of the provision of section 197 Cr. 12. 96 and after examination of the materials on record held that though a prima facie case under sections 323/504 IPC has been made out, but he could not take cognizance of the offence in view of the provision of section 197 Cr. PC as one of the accused persons is a public servant who is removable from his office by the Government and as such directed the petitioner to obtain sanction for launching prosecution against the accused O. P. No. l from appropriate authority prior to taking cognizance of the offence, being totally oblivious of the fact that by order dated 01. 04. 93 cognizance had already been taken and that the appointing authority of the D. S. P. is Director General of Police and as such no sanction is required for prosecution against such officer. ( 3 ) BEING aggrieved by and dissatisfied with the said order, the petitioner has come up with the present application. ( 4 ) ALL that now requires to be considered is whether the learned Court below is justified in passing the above order. ( 5 ) AS none appeared on behalf of the opposite parties, the matter was heard ex parte. ( 6 ) MR. Debasish Roy, learned counsel for the petitioner, on referring to order No. 1 dated 01. 04. 93 advanced argument contending that when learned Magistrate after taking cognizance examined the complaint on S. A. . the question of taking further cognizance of the offence after production of sanction to prosecute accused No. 1 from the appropriate authority by the complainant, as ordered on 31. 12. 96 does not arise at all. Mr. Roy on referring to the cases of State of Kerala. V. P. Padmanavan nair, reported in 1999 Cr LJ 3696 and P. K. Pradhan v. State of Sikkim, reported in AIR 2001 SC 2547 further contended that when the offences under sections 323/504 IPC were prima facie found to have been committed by two, police personnel i. e. O. P. Nos. 1 and 2 by the impugned order, and the said offences cannot be said to form a part of the official duty, no sanction is necessary to prosecute against accused No. 1 who is a Deputy Superintendent of Police, removable by the Director General of Police. 1 and 2 by the impugned order, and the said offences cannot be said to form a part of the official duty, no sanction is necessary to prosecute against accused No. 1 who is a Deputy Superintendent of Police, removable by the Director General of Police. ( 7 ) UPON receipt of a complaint, the Magistrate may take cognizance of the offence and proceed to record the statements of the complainant and witnesses present, if any, under section 200 Cr. PC, and if in his opinion there is no sufficient ground he may dismiss the complaint under section 203. But if there is sufficient ground he may issue process under section 204. If, however, he thinks fit and desires to make further inquiry under section 202, he may postpone the issue of process, and either inquired into the case himself or direct an investigation by a police officer or other person. After the inquiry or investigation, as the case may be, he may issue process or dismiss the complaint as he thinks fit. In the: present case, since cognizance of the offence was once taken on the very first date on 01. 04. 93 before recording the statement of the complainant under section 200 Cr. PC, the question of taking further cognizance by the learned Magistrate, as observed in the impugned order dated 31. 12. 96, does not arise. ( 8 ) THE allegation in brief, as made out in the petition of complaint is as follows: The complainant is the Organizing Secretary of ganatantrik Nagarik Samity which decided to hold a meeting and make peaceful demonstration in front of the office of the Employment exchange at Howrah to protest against the malfunctioning and irregularity in appointment and for this purpose prior permission was obtained from the appropriate authority for using amplifier in the meeting. While the complainant along with anotner tried to fix up a hoarding with the inscription "akarma Sansthan Kendra", accused No. l who is Deputy Superintendent of Police (South), Howrah without any provocation assaulted him on his leg; thereby causing serious painful injury his fall on the ground. He was also abused filthily by the said accused. While the complainant along with anotner tried to fix up a hoarding with the inscription "akarma Sansthan Kendra", accused No. l who is Deputy Superintendent of Police (South), Howrah without any provocation assaulted him on his leg; thereby causing serious painful injury his fall on the ground. He was also abused filthily by the said accused. He was dragged by his heirs by accused No. 2 S. I. of Police under the direction of accused No. l to Howrah P. S. where he was further assaulted and abused by both the accused and was confined in a small cell. After his release on bail on the following date i. e. 19. 03. 93 he was medically treated at Howrah General Hospital. ( 9 ) BEFORE invoking the provision of section 197 Cr. PC, two conditions must be satisfied viz. (1) the public servant is removable from office either by the Union Government or State Government and not by any lesser authority, and (2) he is accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty. ( 10 ) SO far as the first condition above is concerned, indubitably the state Government is the appointing and dismissal authority of a police officer of the rank of Deputy Superintendent of Police. ( 11 ) AS regards the second condition above, it was held in the constitution Bench decision in Matajog Dobey v. H. C. Bhari, reported in AIR 1956 SC 44 that in order to necessitate sanction there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that he could lay a reasonable but not pretended or fanciful complaint that he did it in the course of the performance of Ms duty. "if the acts complained of are inseparably connected with the duties attached to his office sanction would be necessary, but if there is no necessary connection between them the official status furnishing only the occasion or the opportunity for the acts, then no sanction mould be required", as was held the case of Amrik Singh v. State of Pepsu, reported in AIR 1955 SC 309 . So, to assault and abuse the complainant who along with another was trying to display a hoarding with an inscription "akarma Sansthan Kendra" in front of Employment Exchange at Howrah, followed by further assault and abuse at the P. S. can never be a part of an official duty of a police officer nor can the said act be [regarded as one done in the discharge of his official duty, as the act complained of is unrelated to his official duty, and so no sanction is necessary. In this connection, the cases of pravakar v. Shanker Anant, reported in AIR 1969 SC 686 and State of maharashtra v. Atma Ram, reported in AIR 1966 SC 1786 may be referred to. It is to be borne in mind that when a public servant is charged with an offence, whether sanction is; or is not necessary must be determined with reference to the allegation in the complaint and not the defence that may be put forward, as was observed in the case of Dr. Hori Ram singh v. Emperor, reported in AIR 1939 FC 43. If the allegations in the complaint do not indicate that the sanction to prosecute the police officer has been obtained, the Court can have no grounds for looking to the sanction and in the absence of such sanction for refusing to entertain the complaint. It must proceed with the complaint. In such a case, an occasion might arise for the Court when at later stage it appears that the Officer acted or purported to act in the discharge of his official duty to stop the proceedings for want of sanction. In this connection, reference may be made to the cases of Matajog (supra) and nagraj v. State of Mysore, reported in AIR 1964 SC 269 . Similar holding finds place in the three Judges Bench decision in P. K Pradhan (supra)where it was observed that it is well settled that question under section 197 can be raised any time after the cognizance, may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that the did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined, during the course of trial by giving opportunity to the defence to establish it. In such an eventually, question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. ( 12 ) WITH the background discussion, the impugned order dated 31. 12. 96 passed by the learned Chief Judicial Magistrate, Howrah in complaint Case No. C. 368 of 1993 being not sustainable be set aside. ( 13 ) THE learned Magistrate is directed to dispose of the complaint in the light of the above observation and in accordance with the law as expeditiously as possible, preferably within a period of fortnight from the date of communication of the order. Let a copy of this order be sent down at once to the learned Court below. Application succeeds