K.SAHAI, J. - (1.) AT the relevant time, petitioner No. 1, R.K. Singh, was an Inspector, and was officer in charge of Amrapara Police Station. At the same time, petitioner No. 2, Ambika Singh, was a Sub -Inspector of Police, and was posted in Dumka Town Police Station. Petitioner No. 1 sent a requisition to Dumka Town Police Station for the arrest of the opposite party, Jagarnath Bhagat. Petitioner Ambika Singh arrested him on the 2nd February, 1963, and produced him in the Court of the Sub -divisional Magistrate of Dumka on the same dale. A bail petition was filed, and, thereafter, the opposite party was released on bail. On the 5th February, 1983, he filed a petition of complaint against both the petitioners before the Sub Divisional Magistrate of Dumka. The learned Magistrate sent the matter for inquiry, and, after inquiry, the inquiring officer submitted a report that no prima facie case had been made out against the petitioners. The Sub Divisional Magistrate of Dumka, Mr. N.K. Dutta, considered this inquiry report in a long order dated the 31st January, 1964. He disagreed with the inquiring officer in the operative part of his order as follows : "Hence, in my opinion, there is prima facia case against both the accused persons, and they are, therefore, summoned under Section 342/500, I.P.C. after sanction for prosecution received by competent authority for which the complainant will take steps." This is a wholly illegal order, Section 197 of the Coda of Criminal Procedure contemplates that, in a case where sanction is necessary, the Court cannot take cognisance unless previous sanction is given by the Central Government or the State Government, as the case may be. The Sub -Divisional Magistrate should, therefore, have considered, first, whether sanction under Section 197 was necessary for prosecution of either of the two petitioners. If he was of opinion that no such sanction was necessary, he could proceed to consider the question whether a prima facie case had been made out against them. Thereafter, he could take cognizance. If, on the other hand, he came to the conclusion that previous sanction under Section 197 was necessary in the case of either of the two petitioners, he could not take cognisance of the case against the petitioners for whose prosecution sanction was necessary. The Code of Criminal Procedure does not contemplate that a Magistrate should take cognisance of a case in which sanction is necessary under Section 197, and should ask the complainant to take steps for obtaining subsequent sanction.
(2.) I may further mention that the learned Magistrate does not appear to have been clear as to the legal position. Petitioner No. 1 could have acted under Section 55(1)(c). Petitioner No. 2 could have acted under Section 54 (ninthly) of the Code. The learned Magistrate should have considered the case against each petitioner separately in order to find out whether a prima facie case had been made out against both or any of them as having acted mala fide. His consideration of the case is, therefore, defective. In the result, I allow the application, set aside the order of Mr. N.K. Dutta, dated the 31st January 1964, and remand the case to the Sub -Divisional Magistrate of Dumka. He will consider the complaint of the opposite party afresh after inquiry, if he deems it necessary, in accordance with law and in the light of the observations which I have made above. Petition allowed.;