IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32958 of 2010 DEO SHARAN DAS S/O HARI YADAV R/O VILLAGE- KESHOPUR, P.S.- TELHARA, DISTRICT- NALANDA ……………… Petitioner Versus THE STATE OF BIHAR …………. Opposite Party ----------- 2. 07.03.2011 Heard the parties. The petitioner is aggrieved with the order dated 20.7.2010 passed by Additional District and Sessions Judge F.T.C.-III, Gaya in S. Tr. No. 466/2009 arising out of Protest Complaint Case No. 762 of 1993, by which he has refused to discharge the petitioner. The prosecution case is that while the informant was going along with his brother on a certain day in the market, the petitioner on the orders of Birendra Kumar Singh the officer in charge of the police station fired at him and while the bullet missed him it killed his brother and a vender who subsequently died. There is another version of the occurrence given by the officer in charge Birendra Kumar Singh that the occurrence had taken place in a different manner and it was that while they were on patrolling duty, when they were fired at, a counter firing took place by the police officers on account of such some persons lost their lives. It has been submitted that as per both the versions, the petitioner admittedly fired on the order of his superior officer and, therefore, he was protected by virtue of Section 76 I.P.C. and the illustration-a squarely covers the present occurrence. Further submission is that the deceased was a veteran criminal and there were a number of cases pending against him and, therefore, after investigation final report was submitted in this case which was accepted by the court but cognizance was taken on the basis of protest-cum-complaint petition. It has further been submitted that when the court was itself of the opinion that sanction was required in the facts of the case, the case should not have proceeded. On going through the First Information Report which is the basis of the present prosecution, I find that the petitioner allegedly fired on the orders of his superior officer and obviously Section 76 I.P.C. does not cover such a situation because as the facts indicated in the present case, it appears to be a cold blooded murder. Moreover, illustration-‘a’ enumerates a totally different situation. As for the case that was instituted by the officer in charge it is a defence document which can only be considered at the stage of trial. Also, since, the act was certainly not committed in course of official duty, there is no question of sanction. In view of such, the application is dismissed. Fahad. ( Anjana Prakash, J. )