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Judgment
Manisana, J.—Heard Mr. S.N. Chetia, learned Counsel for the Petitioners as well as Mr. A.R. Borthakur, learned Counsel for the opposite party No. 1 and Mrs. M. Sarma, learned public prosecutor for the State (Respondent-2).
On 11.10.85, on the receipt of the complaint made by the opposite party No. 1, the learned Additional Chief Judicial Magistrate Jorhat took cognizance of offence/offences. But the learned Magistrate has not mentioned the offences, which he has taken cognizance of. It appears to me that the learned Magistrate suo motu examined whether sanction u/s 197, Code of Criminal Procedure is required in the present case. On 18.10.85, the learned Magistrate issued warrant of arrest of Rs. 2000/- against the accused persons under Sections 448, 166, 233, 353 and 384, IPC, after coming to the conclusion that the Petitioners are not protected u/s 197, Code of Criminal Procedure, hence this petition to this Court.
In considering the question whether or not the sanction for prosecution is required, it is not necessary for the Court to confine itself to the allegations in the complaint. It can take into account of the materials on the record at the time when the question is raised for consideration. At any stage of the case, if it appears to the Court from the evidence and other materials before the Court that the offence is one falling u/s 197, Code of Criminal Procedure, the Court is bound to drop the proceedings against the accused in the absence of the requisite sanction although the allegation in the complaint do not show that Section 197, Code of Criminal Procedure, applies to the case.
Mr. Chetia has placed before me various documents annexed to the petition to show that the sanction u/s 197 , Code of Criminal Procedure is required. These documents were not available before the learned Magistrate for his consideration. As already stated above whether the sanction is necessary or not may be determined from stage to stage in the course of the progress of the proceedings. Therefore, the Petitioners are not debarred from urging this point before the learned Magistrate placing all the relevant documents and materials. Mr. Chetia has also referred me a decision of this Court reported in (1983) 1 GLR (NOC) 31 K.P.S. Gill v. Debeswar Sarma. This decision is not against the proposition which has already been stated above. The decision may be placed before the learned Magistrate for his consideration when occasion arises. In this view of the matter, I am not inclined to interfere with the findings of the learned Magistrate.
As already stated above, the order dated 10.11.85 does not show the offences, which the learned Magistrate has taken cognizance of, although in the order dated 18.10.85, the learned Magistrate has mentioned Sections 448, 166, 233, 353 and 384, IPC; and the expression appearing in the operative portion of the order "issue warrant of Arrest of Rs. 2000/- against the accused persons", it is not clear what the learned Magistrate actually meant. However, on the concession given by the learned Counsel for the parties, it is ordered that:
(a) the Petitioners shall appear before the learned Additional Chief Judicial Magistrate, Jorhat, within two months from today;
(b) the Petitioners shall produce the disputed documents within two months from today subject to just objection that may be raised by them; and
(c) the learned Magistrate shall not issue warrant of arrest and search warrant till the expiry of the said two months.
In passing any order relating to the disputed documents, the learned Magistrate is requested to keep in view the provision under Article 20(3) of the Constitution of India and decisions in Shyamlal Mohanlal Vs. State of Gujarat, and V.S. Kuttan Pillai v. Ramakrishnan AIR I980 SC 185. With the said observations and directions the petition is disposed of. Stay order, if any, stands vacated.