It is only because that the accused persons kept on submitting that the prosecution against them is not tenable in the absence of a valid sanction that ultimately, the complainant thought fit to pray for sanction.
It is only because that the accused persons kept on submitting that the prosecution against them is not tenable in the absence of a valid sanction that ultimately, the complainant thought fit to pray for sanction. Whether the act of the accused as complained falls within the ambit of “in discharge of official duty” or not, is an issue which could be considered best only after the necessary evidence is led by the defense, unless concerned Court is of view that the facts on record makes it abundantly clear that the act complained was in discharge of the official duties of the accused. To put in other words, three contingencies may arise before the court,
- First, the complaint itself may contain an averment that the act committed by the accused was in discharge of his official duties. In such circumstances, the Court will have no other option, but to insist for an appropriate sanction before it proceeds to take cognizance,
- Secondly, there may be a case in which the complaint may not contain any averments as regards the commission of the act in discharge of the official duties, but if the facts otherwise makes the picture very clear before the Court even then the Court will have to insist for an appropriate sanction before proceeding further with the complaint, and
- Thirdly, there may be a case in which the picture may not be clear at the initial stage and the Court may have to lead some evidence before it can decide whether the act complained was in discharge of the official duties of the accused or not. I find it very difficult to accept the argument of Mr. Syed that having once accorded the sanction under Section 197 of the Code, the complainant cannot now turn around and say that the sanction was otherwise not required or necessary. According to Mr. Syed, since sanction has been accorded by the Government, that would suggest that the accused persons alleged to have committed the offence was in discharge of their official duties. It is too early to comment anything in that regard. The whole attempt on the part of the learned counsel appearing for the petitioner is to persuade the Court to take the view that once the sanction goes, the whole complaint fails. I am afraid, I am unable to appreciate this argument on the part of the learned counsel.
Considering the above, the order of the learned Magistrate taking cognizance and issue of process cannot be termed as illegal or a nullity only because sanction came to be accorded at a later stage.