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Criminal Revision Application No. 2 of 1953, decided on 22nd February 1953, against the order of District Magistrate, Muzaffarabad dated the 15th November 1952.

Ss. 197, 439‑Accused a Prosecuting D. S. P. Without putting up appearance before Magistrate, applying in revision to High Court for quashing proceedings for wart of sanction ‑‑Revision premature.

Where the accused a Prosecuting D. S. P. had not appeared on summons before the District Magistrate, but had applied in revision to the High Court for quashing proceedings for want of sanction under section 197, Cr. P. C.

Held, the petition in revision is premature and the petitioner should apply to the District Magistrate that his trial is barred under section 197, Cr. P. C. and prove the facts necessary for it and if the order goes against him then he should move the sessions Judge or the High Court.

Muhammad Shafi for Petitioner.

Respondent in person.

‑This is a petition in revision by Ghulam Din Ashai, Prosecuting Deputy Superintendent Police Muzaffarabad against an order of the District Magistrate, Muzaffarabad summoning him as an accused on the complaint brought by Syed Zain‑ul‑Abedin, Advocate against him and others under sections 342, 323, 222, 119, 166, 147 and 109, A.P. C. It is contended that the District Magistrate overlooked the provisions of section 197, Cr. P. C., in summoning the petitioner who is a Gazetted Officer of the Azad Kashmir Government with out obtaining sanction of the Government for his prosecution as the offences alleged to have been committed by him in the complaint were committed if at all by him while acting or purpor ting to act in the discharge of his official duty.

The record of the District Magistrate shows that after examining the complainant, he was of opinion that the petitioner and Muhammad Hussain, Stab‑Inspector Police should only be summoned out of the six persons named as accused to appear in his Court and to answer the complainant's allegations so far as these related to offences covered by sections 220, 323 and 342, A. P. C. The petitioner and Muhammad Hussain, Sub‑Inspector did rot appear before the District Magistrate in response to the summons, bat avoided their service in one way or the other till the present petition was filed.

The question is whether the petitioner has a right to chal lenge the order passed by the District Magistrate without appear ing in his Court and making an application that the prosecu tion is incompetent so far as he is concerned without sanction of Government under section 197, Cr. P. C., and obtaining his deci sion thereon. Unless the accused who pleads section 197 as a bar to his trial appears, the Magistrate is unable to decide whe ther the sanction of the Government is necessary for his pro secution or not. It is for the accused who pleads section 197 as a bar to his trial to show the facts which bring that section into operation and the plea must be raised at the trial itself. In other words, the question of the necessity for sanction should be gone into by the Magistrate in the first instance and then High Court should be moved. It is true that section 197, Cr. P. C. requires that no Court shall take cognizance of an offence alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duties without previous sanc tion of the Government and the fact that the District Magis trate issued a process against the petitioner indicates that he took cognizance of some of the offences with which the petitioner was charged in the complaint. There is, however, no material on the record to show that the District Magistrate applied his mind to that aspect of the case before issuing a process against the petitioner. It cannot, therefore, be reasonably said that the District Magistrate has taken cognizance of any offence alleged to have been committed by the petitioner while acting or purporting to act in the discharge of his official duty without obtaining the previous sanction of the Government.

The expression "taken cognizance of an offence" has not been defined in the Cr. P. C.. In its broad and literal sense, it would mean "take notice of an offence" which implies a continuous act commencing as soon as a Magistrate applies his mind to a case and only ends when the Magistrate is no longer a seisin of it. The plea that section 197, barred the trial of the petitioner not having been taken before the Magistrate, i‑, cannot be said that the Magi3trate considered this phase of the case before initiating judicial proceedings against the petitioner in respect of the offences.

I am, therefore, of opinion that petition in revision is pre mature and the petitioner should apply to the District Magistrate that his trial is barred under section 197, Cr. P. C. and prove the facts necessary for it and if the order goes against him then he should move the Sessions Judge or the High Court. I, therefore, dismiss the petition in revision.

A. H. Petition dismissed.

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