Ashok Sahu V.

Gokul Saikia And Another

Supreme Court Of India

Criminal Appeal No. 602 Of 1987

Judgment Date:
30-03-1988

Ashok Sahu ..Petitioner

Gokul Saikia And Another ..Respondent

Bench:
{HON'BLE JUSTICE G. L. OZA , HON'BLE JUSTICE K. JAGANNATHA SHETTY }

Citation:

(1990) SCC CRI 611 ; (1990) SUPPL. SCC 41 ; LQ/SC/1988/202 ;

1. This appeal by special leave, is against the order passed by the High Court of Gauhati in Criminal Revision
No. 336 of 1982 decided on July 30, 1986

2. The matter arises in this way

3. The respondents filed a complaint against the appellant, who at relevant time was a Superintendent of Police
posted at North Lakhimpur in respect of some incident. After examination of the complainant, the Magistrate
before whom the complaint was filed issued process. The appellant entered appearance and contended that a
sanction under Section 197 of the Code of Criminal Procedure was necessary to sustain the complaint against him
and since there was no such sanction, the prosecution against him could not continue. The learned Magistrate
accepted the objection and discharged the appellant. The respondent thereafter filed a criminal revision before the
High Court. The High Court by the order impugned herein has allowed the criminal revision. The High Court was
of opinion that a sanction under Section 197 of the Code is not necessary having regard to the facts of the case

4. In support of the conclusion, the High Court has not only referred to the averments in the complaint, but also
statements of the complainant which were recorded before issuing the process. Some documents which are yet to
become evidence in the case were also relied upon to reach the conclusion that a sanction under Section 197 of
the Code is not necessary. The High Court has remanded the case for trial. It is against this order of the High
Court, the present appeal has been preferred

5. Having heard appellant in person and gone through the order of the High Court, it appears to us that the
order of the High Court cannot be sustained. The complaint of the respondent is one-sided version. The other
documents relied upon by the High Court are yet to become evidence. On these, one cannot reach the conclusion
that the appellant has exceeded his powers

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 Ashok Sahu V. Gokul Saikia And Another

6. We agree that the want of sanction under Section 197 of Code is a prohibition against institution of the
proceedings, and the applicability of the section must be judged at the earliest stage of the proceedings. See :
Hori Ram Singh v. Crown and Sarjoo Prasad v. King Emperor. Regard being had to these principles, we are of
opinion that it would be proper that the Magistrate considers the question of necessity of sanction after recording
some evidence with opportunity to the parties. The court then will be in a better position to come to a
conclusion whether on the facts so established prima facie, sanction under Section 197 is necessary or not

7. We, therefore, allow this appeal and in reversal of the judgment of the High Court, we direct the learned
Magistrate to take some evidence and consider the question of sanction before framing a charge

8. Before parting with the case, we may also observe that the case relates to a very petty matter of the year
1982. On the one hand, a public man is involved and on the other, a responsible public officer is involved. We
do hope that the complainant would consider whether in the circumstances of the case, it would be proper for
him to pursue the matter further at this length of time

9. In the result, while setting aside both the orders of the courts below, we direct the trial Magistrate to dispose
of the matter in the light of the observations made.

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