MONOJ KUMAR MUKHERJEE J. - (1.)THIS Rule is directed against an order passed by the Sub -divisional Judicial Magistrate, Tamluk dismissing the complaint of the petitioner for want of sanction required under Section 197 of the Cr. P.C. (hereinafter referred to as the Code).
(2.)THE petitioner filed the complaint under Section 500 of the I.P.C. against the opposite party, who at the material time was the Block Development Officer, Mahisadal -I. In his complaint the petitioner stated that the opposite party married the cousin of one Kalpataru Das, the then Veterinary Surgeon of Mahisadal -I who had his office and quarter in the village Nandakumar, wherein also the petitioner resides. Case and counter case are pending between Kalpataru Das and the petitioner and his sons over some alleged incidents of assault on April 23, 1976. On May 17, 1976 the accused sent a report to the Sub -divisional Magistrate, Tamluk for taking action against the petitioner and his sons under Section 107 of the Code. According to the petitioner, the allegations made in that report were false and malicious and the report was made by the opposite party with the intention to harm and injure the reputation of the petitioner. On receipt of such report the Sub -divisional Judicial Magistrate drew up a proceeding and issued non -bailable warrant of arrest against the petitioner and his sons and the petitioner was put in custody for some days. Ultimately, the said proceeding under Section 107 of the Code was dropped pursuant to an order of the learned Sessions Judge, Midnapore. The petitioner alleged that the opposite party, in order to harass and humiliate the petitioner, who was litigating with the said Kalpataru Das, made a false report containing highly defamatory imputations with intent to harm the reputation of the petitioner in the estimation of his friends, relations and others and thereby committed an offence punishable under Section 500 of the I.P.C. In his complaint the petitioner specifically averred that the act complained of and the offence committed by the accused were not connected with the official duty of the accused as a Block Development Officer and as such no sanction was necessary to prosecute him.
The learned Magistrate perused the complaint and observed that before taking cognizance it was necessary to see whether previous sanction of the State Government was necessary under Section 197 of the Code. He heard the learned Advocate for the petitioner on this point and allowed the prayer made on behalf of the petitioner to adduce evidence as per provision of Section 200 of the Cr. P.C. He examined the petitioner and the two witnesses produced on his behalf and on consideration of the materials placed before him and the law in this respect, as interpreted by the Supreme Court in its different decisions, held that the case was not maintainable in absence of sanction. Accordingly, he dismissed the complaint under Section 203 of the Code.

(3.)AT the outset I may point out that the procedure that was adopted by the learned Magistrate before dismissing the complaint is opposed to the mandatory provisions of law. The learned Magistrate before taking cognisance decided to ascertain whether sanction was necessary and to that extent he was fully justified. But then, so long he did not take cognizance he was not empowered to examine the complainant or his witnesses. The law is now well settled that cognizance is taken upon the complaint and the object of examination of the complainant and his witnesses under Section 200 of the Code is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint. It is of course true that whether a sanction is necessary or not has to be decided with reference to the point of taking cognizance, but such decision may be at any stage of the trial. In that view of the matter, I must hold that the learned Magistrate erred in examining the complainant and his witnesses before taking cognizance.