JUDGMENT :

AJAI TYAGI, J.

1. This appeal has been preferred against the judgment and order passed by Additional Sessions Judge/Special Judge (Dacoity Affected Area), Lalitpur in Sessions Trial No. 03 of 1998 (State vs. Basant Lal and Another) under Sections 147, 342/149, 395 IPC, by which accused appellants-Basantlal Pal and Ghanshyam were convicted under Sections 394 and 342 IPC and sentenced for 10 years RI and Rs. 10,000/- fine under Section 394 IPC and one year RI under Section 342 IPC. During the pendency of this appeal, Ghanshyam- appellant No. 2 died and appeal was abated against him.

2. In this case, initially First Information Report bearing Case Crime No. 23/1993 was filed against five accused persons namely, Basantlal Pal, Ghanshyam, Ram Narain, Rajendra Singh and Rameshwar Dayal (all police personnel). Investigating Officer filed final report in court due to not finding any evidence. Final report was accepted by learned Magistrate against which a revision was preferred before learned Sessions Judge. Learned Sessions Judge, allowed the revision and directed the learned Chief Judicial Magistrate to decide the matter afresh. Learned CJM took cognizance. In the meantime, complainant also filed a complaint before Special Judge (Dacoity Affected Area) and the court summoned the above named accused persons for trial.

3. The relevant brief facts of this case are that complainant-Hari Shankar stated in report that he is collection-amin in Tehsil-Tal Behat, District-Lalitpur. Between 23.12.1992 and 25.12.1992, he was in his area for collection of land-revenue and on 25.12.1992, he was returning to his home after collecting Rs. 2,839/- as revenue collection, at about 7:00 p.m. he reached before police-outpost Baansi with his peon Nathu Ram. Basantlal Pal, In-charge outpost, constable Ghanshyam and three other constables came out. They started beating him by fist, legs and rule. They robbed the amount of Rs. 2,839/- of revenue collection and government record from him and locked him up in lockup. On hue and cry of complainant, one Badri Prasad and already locked up in police-chauki Brij Lal had seen the occurrence. It has also been stated in complaint that at 12:00 mid-night also above police-personnel beaten the complainant and his son Krishna Kant, who was already inside the lockup. Next day, accused persons challaned him under Section 151, 107 and 116 Cr.P.C. and produced before Sub Divisional Magistrate, Talbehat. At the time of challan, accused persons forcefully returned Rs. 800/- to the complainant. By the order of S.D.M. medical examination of complainant and his son was conducted and SDM released them on bail.

4. Before making the charge, accused Rameshwar Dayal died and case was abated against him. Charge under Section 395 IPC was framed against rest of the accused persons and later on charge was amended by the learned trial court and it was framed under Sections 147, 342 read with Sections 149 and 395 IPC. After trial, learned court below acquitted the accused persons Rajendra Singh and Ram Narain of all the charges levelled against him and convicted the accused Basantlal Pal and Ghanshyam under Sections 394 and 342 IPC and sentenced them for 10 years RI under Section 394 with fine of Rs. 10,000/- and for one year RI under Section 342 IPC.

5. Aggrieved by this judgment, appellants preferred this appeal, but during the pendency of the appeal, appellant No. 2-Ghanshyam died and appeal was abated against him. Now sole appellant Basantlal Pal contested this appeal.

6. Heard learned counsel for the appellant, learned AGA for the State and perused the record.

7. Learned counsel for the appellant, first of all, argued that appellant was a public servant, but prosecution did not take prosecution sanction as provided under Section 197 Cr.P.C. which says that when any person who is or was a Judge or a Magistrate or a Public Servant not removable from his office saved by or with the sanction by the government is accused by any offence