HIGH COURT OF KERALA
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(1.) A private complaint was filed against a Sub Inspector of Police under S.323 of the Penal Code before the Additional First Class Magistrate, Karunagappalli. An objection was taken before the Magistrate that the Sub Inspector could not be prosecuted without sanction of the State Government under S.197 of the Code of Criminal Procedure. Though the Magistrate took some evidence in the case, he accepted this contention and dismissed the complaint without prejudice to a fresh complaint being filed after obtaining necessary sanction. The complainant filed a revision petition before the District Magistrate (Judicial), Quilon; and the District Magistrate has referred the case to this Court under S.438 of the Code of Criminal Procedure. The District Magistrate has held that sanction is not necessary. He has also obtained an explanation from the First Class Magistrate; and the latter has stated that the disposal of the case was not under S.245(1) of the Code of Criminal Procedure. The District Magistrate has accepted that; and he has also pointed out that the First Class Magistrate did not consider the evidence but only considered the question of sanction. Therefore, he has overruled the objection that the dismissal of the complaint should be treated as an acquittal against which an appeal lay and a revision before him was incompetent.
(2.) There is a direct decision of the Supreme Court on the question in Nagraj v. State of Mysore ( AIR 1964 SC 269 ), where the Supreme Court has held that no sanction of the State Government for prosecuting a Sub Inspector was necessary, even if he had committed the offence while acting or purporting to act in the discharge of his official duty. Therefore, even if the Sub Inspector purported to act in his official capacity when he stopped the complainant who was riding a bicycle without alight, still, being a Sub Inspector, S.197 does not apply to him.
(3.) The reference is accepted; the dismissal of the complaint is set aside; and the case is remitted to the trial, court to be proceeded with from the stage where it stopped at the time of the dismissal of the complaint.;
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