IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.554 of 2002 ================================================== Rajeev Kumar, son of Nand Lal Kedia, resident of Mohalla- Gosaibagh, P.S.-Kotwali, District- Gaya. .... .... Petitioner Versus 1. Ashok Kumar Singh, son of not known, resident of Khorhari Kothi, near Mahavir Asthan, Manpur, P.S.-Mofassil, District- Gaya at present Executive Engineer, Water Board, Gaya Municipal Corporation, Gaya. 2. Ranjeet Kumar Prasad, son of not known, Deputy Superintendent of Police, City, Gaya (under suspension). 3. Sashi Shekhar Prasad, son of Sheonandan Prasad, Executive Magistrate, Special Officer on Duty, Confidential Section, Collectoriate, Gaya. .... .... Opposite Parties ================================================== Appearance : For the Petitioner : Mr. Akhileshwar Pd. Singh, Sr. Advocate. For the Opposite Party : Mr. Shivendra Prasad, Advocate. ================================================== CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Amaresh Kumar Lal, J. The complainant-petitioner has preferred this revision application against the order dated 25.02.2002 passed by the learned Chief Judicial Magistrate, Gaya in Complaint Case No.621/2000 by which the complaint petition has been dismissed on the ground of want of sanction against the accused persons under Section 197 Patna High Court CR. REV. No.554 of 2002 dt.17-11-2011 2 Cr.P.C. The case of the complainant, in brief, is that Dr. Anup Kumar Kedia, the elder brother of the complainant, being a social activist and critic of police and civil administration in different meeting had also filed C.W.J.C.No.5185/1998 against the Gaya Municipal Corporation for enhancement of holding tax, which greatly annoyed the accused Ashok Kumar Singh, Engineer of the Gaya Municipal Corporation. On 18.05.2000, ante- encroachment sleuth consisting of 100 persons including the accused were indulged in removing the encroachment on the K.P. Road, Gaya since 9.30 A.M. in which Ashok Kumar Singh, the Executive Engineer acted in nefarious design and proceeded up to crossing of Kathotar Talab about 200 ft. west to the shop of the complainant at about 10.30 A.M., the accused Ashok Kumar Singh came to the shop of the complainant and inquired about his brother Dr. Anup Kumar Kedia. After knowing from the complainant that Anup Kumar Kedia had gone out for the treatment of his father and the complainant introduced himself as younger brother of the Dr. Anup Kumar Kedia, the accused Ashok Kumar Singh shouted that Anup Kumar Patna High Court CR. REV. No.554 of 2002 dt.17-11-2011 3 Kedia has become the leader of Bania community and raised voice against the police administration and also made satire in the meeting. The further allegation is that Ashok Kumar Singh after intermediating the complainant instigated the police and others, who assaulted the complainant. The accused Ranjit Kumar Prasad took the Lathi and started beating the complainant mercilessly. Ashok Kumar Singh gave several blows on the chest with his boot and asked the co-accused to kill him. Subsequently, unknown constables and others caught hold the complainant and dragged him. In the meantime, the accused Sashi Sekhar Prasad, Ranjit Kumar Prasad and others gave Lathi blow mercilessly to the complainant causing multiple injuries to him. The constable also assaulted him with butt of his rifle. The complainant became unconscious. The complainant was lodged in the police jeep and taken to the police station and was locked in the room. The complainant and others requested Sashi Shekhar Prasad to send the complainant and others for their treatment, but they were not sent. The complainant was kept in the police lockup till 11.00 A.M. on 19.05.2000. Seeing the precarious condition of the Patna High Court CR. REV. No.554 of 2002 dt.17-11-2011 4 complainant, he was sent to the hospital for his treatment. Thereafter, he came to know that he has been dragged as an accused in connection with Kotwali P.S. Case No.101/2000 dated 18.05.2000. The treatment continued up to 22.05.2000 and on the direction of the learned A.C.J.M, he was produced before him on 23.05.2000. The complainant was carried to the court on Ambulance and before the A.C.J.M on stretcher as per the advice of the doctor as the condition of the complainant was critical. Subsequently, he was forwarded to the Central Jail, Gaya. The Doctor of Central Jail made recommendation to shift him to A.N.M.C.H, Gaya and he was shifted there on 2.06.2000. Complaint case was filed on 13.07.2000 in the court of learned Chief Judicial Magistrate. After holding the inquiry, the complaint petition was dismissed under Section 203 Cr.P.C. The learned counsel for the petitioner submits that during inquiry, the complainant as well as the witnesses examined on his behalf have supported the prosecution case, but the complaint petition has been dismissed on the ground that the accused were the government servant and they were engaged in ante-encroachment drive as per the Patna High Court CR. REV. No.554 of 2002 dt.17-11-2011 5 decisions of the Government and the High Court and also that there is not merit in the complaint petition. He has further submitted that it appears that three witnesses namely P.W.1, Anup Kumar Kedia, P.W.2, Suj Pari Jagwaniya and P.W.3, Jitendra Kumar have been examined during the inquiry. The complainant as well as the witnesses have supported the case of the complainant. The learned C.J.M has also found injuries on the person of the complainant. Assaulting a person mercilessly is certainly not the official duty of the accused. As such, no sanction under Section 197 Cr.P.C. is required. Moreover, the question of sanction can be raised at any stage. In support of his contention, he has relied upon a decision in the case of P.K.Pradhan Vs. State of Sikkim reported in (2001) 6 Supreme Court Cases 704= AIR 2001 SC 2547. No one appears for opposite party nos. 1 and 3. The learned counsel for the opposite party no.2 submits that the accused opposite party had been deputed in the ante-encroachment drive and the accused were on official duty. As such, sanction for prosecution was necessary. No sanction had been granted for prosecution Patna High Court CR. REV. No.554 of 2002 dt.17-11-2011 6 against the accused. As such, the learned Chief Judicial Magistrate has rightly dismissed the complaint petition. Moreover, there is also delay in lodging the complaint case. The petitioner is an accused in Kotwali P.S. Case No.101/2000 and is facing trial. The question of sanction can be raised at any time and this question has been raised at the time of taking cognizance and as such, there is no illegality in the impugned order. In support of his contention, he has referred to decisions in the case of P.K. Pradhan Vs. State of Sikkim reported in AIR 2001 SC 2547and Mostt. Bindu Devi Vs. State of Bihar reported in 2009 (1) PLJR 79. After hearing the learned counsel for both the parties and on perusal of the material on the record, it appears that the occurrence has been taken place during the ante-encroachment drive. The complainant has made specific allegation of assault by the accused and others. The learned Chief Judicial Magistrate has also found injuries on the person of the complainant. The question of the act of the accused opposite party as to whether it was in the official duty or not is to be decided. Both the parties have relied upon the decision in the case of P.K.Pradhan Patna High Court CR. REV. No.554 of 2002 dt.17-11-2011 7 Vs. State of Sikkim reported in (2001) 6 Supreme Court Cases 704 and also in AIR 2001 SC 2547. In this decision, it has been held that whether the offence is committed while acting or purporting to act in the discharge of his official duty as any connection with the discharge of duty or exceed of the official act for the discharge of duty is a question which would arise when the trial proceeds. The opposite parties have claimed that they were discharging the official duty in the execution of ante-encroachment drive, whereas, the allegation against them is to have assaulted the complainant mercilessly causing severe injuries is an official duty or in excess of official duty. Certainly this question can be decided only during the trial. The decision reported in 2009 (1) PLJR 79 does not help the accused as in that case, there was a custodial death and it was held that there can be any nexus between such crime and discharge of official duty of police which may require any sanction for prosecution. It was further held that protection guarantee under Section 197 Cr.P.C. was not applicable in that case. But, in this case, the learned court below has found injuries on the person of the complainant, therefore, it is certainly a case in which it has Patna High Court CR. REV. No.554 of 2002 dt.17-11-2011 8 to be decided as to whether the accused opposite parties were discharging the official duty or has exceeded their acts which can only be decided at the time of trial. Considering the facts and circumstances stated above, in my opinion, the impugned order is not fit to be sustained. The impugned order is set aside. The matter is remitted to the learned Chief Judicial Magistrate, Gaya for passing order in accordance with law. In the result, this application is allowed. Patna High Court, Patna Dated the 17th of November, 2011 NAFR/V.K. Pandey ( Amaresh Kumar Lal, J.)