Prosecution of public servants requires prior sanction under Section 197 CrPC for acts done in discharge of official duty; without such sanction, cognizance is unsustainable.

ORDER :

Ganesh Ram Meena, J.

1. This revision petition has been filed by the accused petitioners with a challenge to order dated 19.09.2005, passed by the Court of Addl. Sessions Judge, Laxmangarh, District Alwar (for short, 'the revisional Court') in Criminal Revision No. 34/2005, whereby the revisional Court had set aside the order dated 18.05.2005, passed by the Court of Judicial Magistrate, Kathumar in Criminal Case No. 298/2001 and remanded the matter back to the trial Court with a direction for pre-charge evidence and after hearing the arguments on the charge, to pass an order according to law.

2. By order dated 18.05.2005, which was challenged in revision petition by the complainant respondent, the Judicial Magistrate, on an application filed by the accused petitioner u/S 197 CrPC, discharged the accused petitioners from the allegation of offence u/S 304A IPC .

3. The brief facts of the case are that a criminal case bearing FIR No. 15/1999 was registered at Police Station Khedli for offences punishable u/S 363, 366 IPC as regards the kidnapping of a girl. Since the kidnapped girl could not be traced out by the police, the public started an agitation and a panchayat was held in village Alipur and it was decided to hold next meeting on 13.03.1999 at village Khedli.

4. To maintain the law and order situation, the administration deployed the police force at Samuchi Railway Crossing, Khedli and other important places and police was directed to control the mob so that the law and order situations may not be worse. During that public agitation, the mob started pelting stones on the police and police had to proceed for 'lathi charge' and fire was made in air without any target to control the mob. During the said agitation, several police vehicles were also damaged and other equipment were taken from the police vehicles. Ultimately, to control the mob, the police had to open fire in their defense and in the said incident, one boy named Ramesh Chand died as a result of fire arm injury.

5. After the aforesaid incident, an FIR No. 48/1999 was lodged by one Maman Singh at Police Station Khedli against several persons, who were the part of the mob.

6. One Murari Lal, who alleged to have sustained injuries in firing, also filed a complaint before the Court of Civil Judge (JD) & Judicial Magistrate, Kathumar on 30.03.1999, which was sent to the Police Station Khedli u/S 156(3) CrPC and thereafter FIR No. 66/1999 was registered on 12.04.1999. As per the averments made in that complaint, 300-400 persons were coming towards Samuchi Railway Crossing and to maintain the law and order, the police had to open fire.

7. One Shyam Lal (the father of the deceased Ramesh Chand) also filed a complaint before the Court of Judicial Magistrate, First Class, Kathumar regarding the incident dated 13.03.1999, wherein his son Ramesh Chand sustained fire arm injury and was declared dead. On the said complaint, statements of the complainant witnesses were recorded and cognizance was taken for offence u/S 304A IPC vide order dated 09.08.2001.

8. The petitioners submitted an application u/S 197 CrPC stating that the act for which cognizance has been taken for offence u/S 304A IPC was an act of the petitioners while discharging their duty. Since the act of the petitioners was a part of discharge of their duty, they have a protection u/S 197 CrPC that no proceeding can be initiated against the public servant without seeking prosecution sanction from the competent authority for prosecuting a person for an act which was done while discharging the official duty.

9. The application filed by the petitioners u/S 197 CrPC was opposed by the complainant and it was submitted that the police had directly resorted to opening fire without first taking other measures as tear gas, lathi charge, etc. It was also submitted that the police had opened fire without there being an authority and therefore order of taking cognizance is just and proper in the facts and circumstances of the cas