1. By the Court.This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 14.12.2001, passed in Cr. Revision No. 478 of 2001 by the District and Sessions Judge, Rohtas wherein the learned Sessions Judge had set aside the order dated 30.8.2001, passed by the Chief Judicial Magistrate, Sasaram dismissing the Complaint Case No. 411 of 2000 under Section 203 of the Code.

2. From the facts of this case it appears that opposite party No. 2 had filed the aforesaid complaint case against the petitioner and others. As many as 12 accused have been named in this complaint petition. The petitioner, Rajeshwar Yadav has been named as accused No. 11. Various allegations have been made in this complaint petition against the accused persons. For the disposal of this applications I am not concerned with the details of the allegations. It will be sufficient to mention that in this case the Superintendent of Police, Rohtas as also the Officer Incharge of S.C.S.T. Police Station, Dehri were also made accused alongwith the number of constables. On the receipt of this complaint petition the learned Chief Judicial Magistrate by his order dated 8.5.2002, sent this complaint petition to the Deputy Inspector General of Police, Sahabad Range (in short the DIG) for enquiry and report. The DIG by his Memo No. 949, dated 17.5.2000, sought an explanation from the Superintendent of Police, Rohtas and his explanation was submitted vide his Memo No. 3146, dated 5.6.2000. In this explanation he had referred to a decision of the Honble Supreme Court dated 10.3.2000, passed in S.L.P. (Cri) No. 1072 of 1998.

3. The DIG submitted his report on 22,8.2000, before the Chief Judicial Magistrate, Rohtas according to which sanction under Section 197 of the Code was essential for the prosecution of the Superintendent of Police and Officer Incharge of the concerned Police Station. The learned Chief Judicial Magistrate by his order dated 30.8.2001, dismissed the complaint petition under Section 203 of the Code on various grounds as also on the ground of want of sanction under Section 197 of the Code. Against this order of dismissal the complainant-opposite party No. 2 filed Cr Revision No. 478 of 2001 before the learned Sessions Judge, Sasaram which was heard and disposed of by an order dated 14.12,2001, (impugned order). By this order the learned Sessions Judge had set aside the order of dismissal of the complaint petition passed by the learned Chief Judicial Magistrate. He further directed him to held an enquiry himself or to get a judicial enquiry by a Judicial Officer held in the matter. He, accordingly, remanded back the case to the Court of the learned Chief Judicial Magistrate with the directions mentioned in this order.

4. On behalf of the petitioner it has been submitted that before passing the impugned order in Cr Revision No. 478 of 2001 the learned Sessions Judge had not given any notice to the petitioner to which he was entitled and without hearing him the order of dismissal passed by the learned Chief Judicial Magistrate Could not have been set aside. The learned Court below failed to consider that in a case like this mandatory compliance of the provisions of Section 197 of the Code would be necessary in so far as the Police Officers are concerned. In this connection reference has been made to two cases namely, case of Bishwanath Singh V/s. Birsai Bhagat, 2000 (2) PLJR 161, and the case of Dr. Ajay Kumar V/s. Girja Nand Prasad. 2000 (4) PLJR 504 (HC). The learned Sessions Judge has failed to consider that if the act or omission complained of against a public servant is done by him while acting or purporting to act in discharge of his official duties then no action against him can be taken by any Court as held in the case of N.C. Dhaundial V/s.State of Bihar, 1997 (2) PLJR 754, and in the case of Naresh Mishra V/s. State of Bihar, 1997 (1) PLJR 1012.

5. The husband of the