I . r^ HI6H COURT OF CHHATHS6ARM AT BILASPUR Cr.M.P No. 238 of 2007 POST FOR ORDERS ON 2"d January. 2008 Sd/- Dhirendra Mishra Judge Z0.12.2007r APPLICANT ^ijay Singh Tomar @ Pujari vs NON-APPLICANTS B.S. Nishad and others r '^ HIfiH COURT OF CHHATTIS^ARH AT BILASPUR APPLICANT Cr.M.P.No. 238/2007 Vijay Sin^h Tomar @ Pujari, S/o Amar Sin9h, a9&d about 33 years, R/o Latbag (Ama9uda), Jagdalpur Distt. Bastar (€.©.). NON-APPLICANTS Vs 1. 2. 4. 5. 6. 7. 8.5. Nishad, S.H. Officer, Police Station- Jagdalpur, aged about 48 years, R/o Civil Line, Lalba9, Oistrict- Jogdalpur (C.©.) Rajendra Sinha, Assistant Sub- Inspector, P.S-- Ja9dalpur, District- Ja9dolpu«*(Bastor) (C.6.) Dur9eshwari Shukla, Sub- Inspector, Police Station Ja9dalpur, bistrict- Ja9dalpur (Bastar) (C.6.) Ajit 09ari, Sub-Inspector, Police Station Ja9daJpur, District- J<»9c'aIPUr' (Bastar) (C.&.) Oilip Mandal, Constable, P.5.- Jagd^pur, R/o Polic^ Line, &istrict- Ja9da(pur (Bastar) (C.®.) Rakesh Singh, Constoble, P.S. Ja9da'PU1*' R/° Police Line. Oistrict- Jagdalpur (Bastar) (C.fi.) Th®Sttttion House Officer, Poiice Station Jagdatpyr, Distt. Jagdalpvr (C.6.) Present: Mr. F.S. Khar®,Advocate for the applicant. Mr. 0.K. Beriwal, Dy. Advocate ©eneralfor the State. OR bE R (Passcd on 02.01.2008) P®rDhirendra Mishra. J: 1. By this petition under Section 482 of Code of Criminal Procedure, 1973 (for brevity * the Code') the appticant has impugn^d the order dated 24.7.2006 passed in Criminal Revision No.52/06 arising out of the order dated 8.5.2006 passed inunregistered complaint between Vijay Singh Tomar Vs. B.S. Nishad and others whereby learned 3rd Additional Sessions Judge, Bastar at Ja9dalpur has dismissed the '^ '•^.- criminal revision and upheld the order of learned Judicial Magistrate 1st Class, Jagdalpur rejecting the comptaint filecl by the applicant herein on the ground that accused persons are public servants and in the absence of sanctian untiler Section 197 (1) of the Code cognizance of offence against them cannot be taken. 2. Learned counsel for the applicant submits that from perusal of the allegations jn the coniplaint, statement of complainant under Section 200 of the Code and statements of the witnesses namely Rajesh, Raghvan Nai A Anit Kumar Soni, prima-face evidence of offence punishable under Sections 294, 295, 323, 5068 read with Section 34 of the Indian Penal Code is made out. Non-applicant No.l is the Station House Officer of Police Station Jagdalpur, whereas, non- applicant No.2 to 6 are the police personnel posted in the said police station and both the courts below have dismissed the complaint at the initial sta9e on the ground that 'they are police personnel and after making entry in the daily diary dated 23.6.2005 action was taken against the complamant in the discharge of their official duty and therefore.sanction is necessary under Section 197 (1) of the Code before taking cognizance. It was argued that the trial court on the basis of reasons assi9ne<l in the daily diary has reached to the conclusion that the act attributed to the non-applicants was done by th&m in the discharge of their public duty, which is contrary to the evidence adduced by the complainant, as it is not the duty of the accused persons, who are police personnel, to drag the complainant and abuse him by using filthy lan9uage* Reliance is placed on the judgment of Hon'ble Apex Court in the matter of Roj Kishor Roy Versus ICanilcshwar Pandcy and another reported in (2002) 6 Suprcme Court Cases 543. 3, On the other hand, tearned counsel for the State vehemently argued that the learned Judicial Magistrate forwarded the complaint to the concerned Superintendent of Police for enquiry and after perusal of the enquiry report and entries of Sanha No.1480 A 1481 dated 23.6.2005 a finding has been arrived that the action against the applicant was taken in the discharge of official duty and therefore. the non-applicants could not be prosecuted in the absence of sanction, 4. I have heard learned counsel for the parties. 5. From perusal of the orders passed by both the courts below it appears that the complainant is a Journalist, some news artjcles were published in the newspaper against the accused No.l & 2 and aggrieved by the publication of the news item, the complainant was physically assaulted and abused by the dGCUsed persons and when the complainant's wife intervened, she was also manhandled. The cGmplainant was detained in the police station for whole night and thereafter IstagafiEha was filed against him before the City Magistrate, Jagdalpur. The complainant was hospitalized on 25.6.2005. however. on arrival of the police in the hospital, he fl&d from the hospital out of fearand in this regard complaint was made by the complainant before the senior police authorities. 6. In the matter of Kaj Kishor Roy (supra) it has been held that it is general proposition of law that the bar under Section 197 of the Code is mandatory where the act has been done by the public servant in the course of his service or in the dischar9e of his duty. There can be no dispute that the sanction for prosecution under Section 197 of the Code is necessary before taking cognizance, However, it has been further held that the offence alleged to have been conimitted must have something to do or must be related in 4 \....- ;'Y some manner, with the discharge of official duty. For invoking protection under Section 197 of the Code, the acts of the accused, coniplained of, must be such that the same cannot be separated from the discharge of officiat duty, but if there was no reasonable connection between them and the perforroance of those duties, and the official status furnishes only the occasion or opportunity for the acts, then no sanction will be required. It has been further hetd that the question of sanction under Section 197 can be raised any time after the co9nizance; may be imroediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. Ther®can b®cases when it may not be possible to decide th®question effectively without giving opportunity to the defence to establish that what he did was in discharge of his official duty. In such an eventuality, the question of sanction should b®left open to be decided in the main judgment which may be delivered upon conclusion of trial after giving opportunity to the defence to establish it. 7. In the instant case from the allegations made in the complaint it is clear that the grievance of the applicant is that as a Journalist on the basis of his dispatch certain news articles were published against the accused No.l & 2, the above publication enra9ed the accused persons, who are potice personnel posted at concerned potice station, and then just to teach the applicant a tesson, he was dragged from the temple, thrashed by them and detained him in the police statjon for the whole night and thereafter Istagasha was filed in the Court of Executive Magistrate on the apprehension of breach of peace. The appl'icant sustaineel injuries and was admitted in the Maharani Hospital, Ja9datpur after he was released by the Executive SEaw»,<.w^^.-.tL^i^s '^ 'IO^; Roshan/- Magistrate. In these circumstances the question whether the acts were cominitted by the accused persons in the discharge of their official duty could not have been decided only on the basis of entries in the daily diary made by the accused persons themselves and in the facts of the present case it would have been appropriate to conslder the requirement of Section 197 of the Code only after affording opportunity to the applicant/complainant to establish his case by adducing evidence and opportunity to the defence to establish that the act they did was don® in the officjat course af their duty and the question of sanction ought to have been left open to be examined during the course of trial or at the conclusion of trial. 8. In the result. the petition is allowed and the impugned orders dated 24.7.2006 & 8.5.2006 passed by both the courts below are hereby set aside. The trial court shall now proceed with the case in accordance with law. Sd/- Dhirendra Mishra Judge