Important Point: As no sanction as is required under Sec.197(3) was obtained before prosecuting the appellants and therefore, the trail Court could not have taken cognizance against them and therefore, the judgment and order of conviction is liable to be set aside.

G.B. SHAH, J.

1. Present appeal, filed by the appellants – original accused, assails the judgment and order dated 09/11/2006, passed by the learned Additional Sessions Judge, Court No. 5, City Sessions Court, Ahmedabad in Sessions Case No. 296 of 2004, whereby, the appellants – original accused came to be convicted for the offence punishable under Section 222 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and the appellant – original accused No. 1 was sentenced to undergo rigorous imprisonment for three years and a fine of Rs.5,000/- and in default of payment of fine, to undergo, further simple imprisonment for one year, whereas, the appellant Nos. 2 to 4 – original accused Nos. 2 to 4 were sentenced to undergo rigorous imprisonment for 2½ years and fine of Rs.2,000/- each and in default of payment of fine, to undergo, further simple imprisonment for six months.

2. Brief facts of the case of the prosecution are that one accused, undergoing sentence in the Vadodara Central Jail, was required to be produced before the City Sessions Court at Ahmedabad on 04/08/2003, for which an escort was arranged. As on that day, since the matter wad adjourned, the said accused was taken for a cup of tea to one of the stalls situated outside the Court compound and on his request to see his ailing mother, escort persons chose to so do by taking him in an auto-rickshaw but when they reached near Hatkeshwar circle, these persons allegedly started nauseating and vomiting as some substance alleged to have been administered by the relatives of the said accused in the tea and while arrangement was being made for medicines from a medical store, the said accused fled away from the custody of the escort persons i.e. the present appellants – accused. Thus, the appellants – accused committed the alleged offence for which, a complaint came to be lodged, in which, the trial culminated into conviction, as aforesaid.

3. Heard Mr. H. M. Parikh, the learned advocate for the appellants – original accused and Mr. K. L. Pandya, learned Additional Public Prosecutor for the respondent – State.

4. Before proceeding with effecting final hearing, Mr. Parikh, the learned advocate for the appellants original accused drew attention of this Court on the impugned judgment and order and submitted that while considering the evidence on merits, the trial Court has not considered the issue related to sanction to be obtained from the State before proceeding with the police officials under section 197(3) of the Code. He further drew attention of this Court on the judgment and order dated 24/11/2005, passed in Criminal Appeal No. 412 of 2004, in the case of Kantibhai Khushalbhai Vasava and Ors. Vs. State of Gujarat and Anr. and submitted that this High Court as well as the Hon’ble Apex Court have decided this issue at length and finally concluded that if no sanction has been obtained by the concerned prosecuting agency before filing the Charge-sheet, no cognizance of the offence can be taken by the concerned Court and section 197(3) of the Code is also very clear on the said aspect. He further submitted that the issue involved in the present case has been squarely covered by the decision rendered in Kantibhai Khushalbhai Vasava (supra).

5. Mr. Pandya, the learned Additional Public Prosecutor, for the respondent – State, could not distinguish the above referred ratio laid down in Kantibhai Khushalbhai Vasava (supra).

6. This Court has gone through the impugned common judgment and order as well as the decision rendered in the case of Kantibhai Khushalbhai Vasava (supra) together with the relevant provisions of Section 197(3) of the Code. Section 197(3) reads as under:

“197. Prosecution of Judges and public servants:

(1) ….

(2) ….

(3) The State Government may, by notification, direct that the provisions of subsection (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they ma