Wanchoo, C. J. - (1.) A reference has been made by a learned Single Judge in this case, and the two questions, which have been put to this Bench for reply are these - (1) Whether in deciding the question of sanction to prosecute a public servant is necessary or not, attention is to be confined to the offence or offences under which the complainant specifically files his complaint or the complaint should also be considered in relation to any other offence which clearly appears on the complaint and in respect which sanction to prosecute is necessary ? (2) Where a prosecution against a public servant covers some offences in respect of which no sanction to prosecute is necessary and certain other offences in respect of which such sanction is necessary then, whether a trial as to the former offences can be allowed leaving aside the other offences in relation to which sanction is necessary on the ground that the complainant does not wish to press his complainant as regards such other offences?
(2.) THE facts of the case may be briefly narrated to understand the two questions put to us for reply. Suganchand was a complainant in a case filed by him against the Assistant Postmaster at Sardarshahar. THE story, which he gave in the complaint, was that the went to the post-office on the 11th April, 1950, in order to deposit the renewal fee for his radio license. THE accused Narendra Singh, Assistant Postmaster demanded a sum of Rs. 10/- from him as bribe. Suganchand refused to give any bribe. THEreupon, Narendra Singh accused abused Suganchand in foul language. Narendrasingh also wanted to take away the receipt which Suganchand held for the previous year. Suganchand refused to hand over that receipt, and thereupon Narendra Singh snatched the receipt from Suganchand and tore it into pieces. On this Sugan Chand warned Narendrasingh that he would report the matter to the higher authorities. This angered Narendrasingh still further, and he got the doors of the Post office closed and illegally detained Suganchand. Narendra Singh then sent for the police, presumably to make some false charge against Suganchand. When however the police arrived on the scene, the true facts are said to have come out, and no action was taken by the Police. It was thereafter that Narendrasingh requested Suganchand not to take any legal steps against him. Suganchand promised not to do so. We are told that Narendrasingh filed some kind of complaint against Suganchand, and it was then that Suganchand filed the present complaint on the 2nd May, 1950, against Narendrasingh under sec. 342, 477 and 504 of the Indian Penal Code This Complaint has been dismissed on the ground that sanction, as required by sec. !97. Code of Criminal Procedure, had not been obtained. We how turn to the first question that has been put to his Bench. The reply to that, in our opinion, is easy. The court is not bound by the sections mentioned in the complaint in deciding whether the complaint is of such a nature as requires the sanction of the authority mentioned in sec. 197. The court must look to the facts contained in the complaint to decide whether an offence, which requires sanction, has been made out. Then we come to the second question. This matter has been considered by High Court in other parts of India as well as by the Federal Court and the Supreme Court, and we may refer to three cases only for our purposes. The first case is Dr. Hari Ram Singh vs. Emperor (l ). In that case Hari Ram, a Sub-Assistant Surgeon in the Punjab was prosecuted under secs. 409 and 477-A of the Indian Penal Code. The offence under sec. 477-A could not be taken cognizance of without the previous sanction of the Governor under sec. 270, sub-sec. (l) of the Government of India Act. The question, however, arose whether Hari Ram Singh could not prosecuted under sec. 409 for criminal breach of trust without the sanction of the Governor, and whether, in case he could be so prosecuted, the case against him under sec. 409 could go on, even though the case under sec. 477-A for falsifying the books of account could not proceed. The learned Judges of the Federal Court held that no sanction was necessary for prosecution under sec. 409 of the Indian Penal Code, and that even though the case under sec. 477-A could not go on without previous sanction, Thereupon, the proceedings under sec. 477-A were quashed by the Federal Court for want of jurisdiction; but the case was sent back to the Sessions Judge for hearing on the merits as regards the charge under sec. 409, and the order of acquittal passed by the Sessions Judge under that charge was set aside The view was that two distinct offences having been committed in the same transaction, one of which did not require sanction while the other did, the circumstance that cognizance could not be taken of one offence without such sanction was not a bar to the trial of the other offence. The next case is Dhirendra Nath Bera vs. Nurul Huda (2 ). This is a Full Bench decision of the Calcutta High Court, in which the previous authorities on the point were reviewed, and the learned Judges held that where the facts alleged in a petition of complaint, or in a report from the police, or in an information received by the magistrate on which a magistrate can ordinarily take cognizance of an offence under sec. 190 of the Criminal Procedure Code, disclose an offence of which cognizance cannot be taken by a magistrate because of the special provisions of sec. 195, or 196 or 196-A or 197 or 199 of the Code, the Magistrate is not debarred because of this from taking cognizance also of other offences disclosed by the facts alleged, which are not, in any way, affected by the provisions of sec. 195, or 196 or 196 A, or 197 or 199. In that case the complainant had filed a complaint for defamation based on the false information given to a public officer with the intent that the latter should act on it. It was held that trial for an offence under sec. 500 was not barred, even though it was open to the public officer to file a complaint under sec. 182 on the same facts. This case went in appeal to the Supreme Court in Basir-ul-Huq vs. The State of West Bengal (3), and was approved, and the law on the point was laid down at page 296 In the following words: - "though, in our judgment, sec. 195 does not bar the trial of an accused person for a distinct offence disclosed by the same fact and which is not included within the ambit of that section, it has also to be born in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the fact disclosed primarily and essentially an offence for which a complaint of the court of or the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Panal Code, though in truth and substance the offence falls in the category of sections mentioned in sec. 185 Cr. P. C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of sec. 195 prosecution for such an offence cannot be taken cognizance of by mis describing it or by putting a wrong label on it. " The answer, therefore, to the second question is that where a complaint against a public servant covers some offences in respect of which no sanction to prosecute is necessary and certain other offence in respect of which such sanction is necessary, then a trial for such offences for which no sanction is necessary can be allowed to proceed provided such offences are of a distinct character, even though they are based on the same facts, and the complainant can ask the court to proceed with the trial of such distinct offences leaving out of consideration the offences for which sanction is required. It should, however, be borne in mind when allowing the prosecution to proceed for such offences that this does not amount to evasion by resorting to devices or camouflages as laid down by the Supreme Court in Basir-ul-Huq's case (3), Let these answers be returned to the Bench concerned. . ;