Decided on March 24,1960

Sm Mini Sardarin Appellant
P B Banerjee Respondents


- (1.) This is a reference by the Deputy Commissioner of Purulia under Section 438, Code of Criminal Procedure The facts of the case will sufficiently appear from the letter of reference of the learned Deputy Commissioner. A petition of complaint under Sections 323/ 500, I.P.C., was filed before the Sub divisional Magistrate, Purulia, by the complainant Sm. Mini Sardarin alleging that the accused opposite party Sri. P.B. Banerjee, who is a Deputy Superintendent of Police at Purulia. while examining the said Sardarin in connection with a criminal case, became excited and assaulted her and her son using at the same time abusive language towards her. I should only shortly state here the nature of the allegation as made by the complainant opposite party. She has stated that the Deputy Superintendent of Police was investigating a case instituted against the police and that while examining the complainant he lost his temper and the accused opposite party lifted up her son by hair and began to abuse him. Thereafter the accused became further excited, for nothing and started abusing the complainant in filthy language and began to kick her on the right arm as well as on the right side of the chest with shoes of his feet and as a result the complainant fell down unconscious due to physical pain and agony. The learned Sub divisional Magistrate After examining the complainant, sent the matter for judicial enquiry at first to Sri. S.P. Sen Gupta and the said learned Magistrate informed the Sub divisional Magistrate that he felt "embarrassed to hold the enquiry in view of previous acquaintance with the accused.
(2.) The Subdivisional Magistrate recalled the matter and made-it over to Sri. A.K. Basu, Magistrate, 1st class, for judicial enquiry. Eventually, the Sub-divisional Magistrate sent the matter for judicial enquiry to Sri. S.N. Maitra, Magistrate, 1st class, on February 2, 1959. The said enquiring Magistrate reported that he was satisfied that a prima facie case under Section 323, I.P.C., had been established against the accused. On April 18, 1959, the Subdivisional Magistrate passed the following order, "complainant absent by petition. Seen the report of the enquiring Magistrate. Petition is filed on behalf of the accused that sanction of State Government was not taken under Section 197, Code of Criminal Procedure" Then on May 6, 1959, the Subdivisional Magistrate passed a lengthy order, the purport of which is that in his opinion the alleged offence was committed by the accused, who is the Deputy Superintendent of Police, while acting in the discharge of his official duty and as such previous sanction of the State Government as-required under Section 197, Code of Criminal Procedure, would be necessary before summoning the accused under Section 323, I.P.C., and he gave direction for necessary steps to be taken in this behalf.
(3.) Against the said order of the learned Subdivisional Magistrate, the learned Deputy Commissioner, Purulia, has made this; reference. In his opinion there is no necessary connection between the offence complained of and the performance of the duties of the said Deputy Superintendent of Police and accordingly he has referred this matter to this Court for setting aside the said order passed by the learned Subdivisional Magistrate. The learned Deputy Commissioner, Purulia, has, in this connection, relied on a decision of the Supreme Court in Amrik Singh v. The State of Pepsu,1955 SCA 368. Section 197(1), Code of Criminal Procedure, runs thus: When any person who is a Judge within the meaning of Section 19, I.P.C., 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 cognizance of such offence except with the previous sanction of the Government concerned.;

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