IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2426 of 2009 VIJAY NARAYAN SINGH Versus STATE OF BIHAR & ANR ----------- 3/ 23.7.2010 Heard learned counsel for the parties. The inherent powers of this Court have been invoked by the petitioner by filing the present petition because a judicial magistrate, who is enquiring into the Complaint Case No. 88 C of 2008, has asked the petitioner who is the Complainant of the above noted case, to produce an order sanctioning the prosecution of the accused who was a public servant. The learned magistrate, after having gone into the enquiry, appears probably forming an opinion that some offences were made out and those could be tried by summoning the accused only when the petitioner-complainant produced the order permitting the prosecution. Besides power under section 482 of the Code of Criminal Procedure, the High Courts have a duty under law to exercise continuous superintendence over the courts of Judicial Magistrates so as to ensure that there is expeditious and proper disposal of cases by magistrates. When we exercise our superintendence, this is not simply done for disciplining the officer, it is for guiding and controlling them in judicial actions. Once a Magistrate has entered into an enquiry under section 202 of the Code, he could pass an order taking cognizance or 2 dismissing the complaint by expressing opinion whether there was or was not sufficient ground for proceeding against a particular accused. If he comes to a conclusion that there were grounds for proceeding against the accused on account of some offence having been committed and if it appears to him that the act complained of was so inseparable from the discharge of the public duties of such public servant who could be the accused, then he could only direct for producing of an order sanctioning the prosecution, else not. For reaching the above conclusion, the magistrates have to read the complaint petition and the allegations which are made therein. The magistrates are never required to go beyond the statement of the complaint petition. That consideration of the facts of the complaint petition has always to be made only with a view to finding out whether the act complained of was done in discharge of the official duty and whether the act was so inseparable from the discharge of the duty that it could not be an independent act, then only an order sanctioning the prosecution could be required to be produced. A public servant could be acting in various manner but, if the act complained of does not appear to be part and parcel of his discharge of his public functions, then no court could compel the person prosecuting such public servant to produce an order under section 197 of the Code of Criminal Procedure. I direct the court below to pass an order keeping in view the above observations, because the court below has not 3 passed an order as to whether the facts, which were produced before him, were constituting any particular offence. He was simply proceeding to point out to the complainant by his order dated 12.11.2008 that the prosecution required a sanction from the appropriate authority and was issuing the direction to that effect. The Court does not appreciate of the impugned order because an order, speaking in nature, as regards the constitution of an offence which could be alleged committed by the accused, has firstly to be passed and then only the court could say that it was so inseparable from the official acts of the public servant that it required sanction under section 197 of the Code of Criminal Procedure. That having not been done, I direct the court below to proceed and pass an order in the above terms. As regards the question of production of sanction, it has just been pointed out that the court has to consider the facts of the case only and then to find out whether the acts complained of is part and parcel of the official duty of a public servant which could be inseparable from his public functions. If it is not, then no sanction under section 197 of the Code could be required. I do not want to influence the opinion and views of the court because I want him to enjoy his freedom and independence of being a judge and to pass an order as he deems necessary to be passed under the facts of the case, because the matter would 4 not be ending up there even if the officer is taking a view which may not be in consonance with my views. In fact, I have not expressed any view on the facts only to secure the independence of the court below. With the above direction, the petition is disposed of. I believe that the court below will appreciate the import of the present order and act accordingly. Anil/ AFR ( Dharnidhar Jha, J.)