IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10837 of 2009 KISHORE KUMAR, SON OF LATE SIYA RAM, RESIDENT OF VILLAGE SUHATH, P.S. SOUR BAZAR, DISTRICT SAHARSA. ---- PETITIONER Versus THE STATE OF BIHAR ---- OPPOSITE PARTY For the petitioner :- Mr. Ashawani Kumar Singh, Sr. Advocate Mr. Vijay Shankar shrivastatav, Advocate Mr. Pankaj Kumar Singh, Advocate For the State :- Mr. Jharkhandi Upadhyay, A.P.P. ----------- 3 16.4.2010 Heard the parties. The petitioner has challenged the order dated 30.1.2009, passed in Sessions Trial No. 115 of 2008/73 of 2008 arising out of Sirdalla (Meskaur) P.S. Case No. 145 of 2005 by the Additional Sessions Judge, Fast Track Court No. 1, Nawadah. An application was filed under Section 227 of the Code of Criminal Procedure praying therein that the petitioner should be discharged for the offences under Section 302 of the Indian Penal Code on the ground that no sanction has been obtained before proceeding in this case. By a composite order the Court has rejected the application under Section 227 of the Code of Criminal Procedure and framed charges against the petitioner under Section 302 read with Section 34 of the Indian Penal Code and 27 of the Arms Act. The facts are that an incident took place on 3.11.2005 which has led to the filing of three cases, Sirdalla P.S. Case No. 143 of 2005, Sirdalla P.S. Case No. 144 of 2005 and Sirdalla P.S. Case No. 145 of 2005. The petitioner is concerned with the last case in which he has been made accused. On the directions of the Superintendent of Police, the petitioner along with police force proceeded towards the 2 Sirdalla police station to arrest one Asraf Khan against whom there was a report that he had kept a large number of arms and ammunitions stocked up in his house. On search and seizure, the arms and ammunitions were recovered and Asraf Khan was arrested. While the police party headed by the petitioner was returning with Asraf Khan, mob of villagers stopped the jeep pelted stones and made attempts to retrieve Asraf Khan from the police jeep. It is said that one of the members of the mob fired which hit another person in the mob. The aforesaid two incidents one of arresting Asraf Khan and the other of retrieving Asraf Khan lead to filing of Sirdalla P.S. Case No. 143 of 2005 and 144 of 2005 by the petitioner. Sirdalla P.S. Case No. 145 of 2005 was instituted by one Uday Kumar who has alleged that the petitioner has fired which led to the death of his cousin Pawan Kumar Mishra. The investigation started, cognizance was taken and finally charges have been framed. The question that has arisen in this case is whether there was any necessity to take sanction for the offences alleged as it has been argued that killing of a person can never be an act which could be termed to be in discharge of official duty. This view happened to be considered in the case of Sankaran Moitra Vs. Sadhna Das & Anr. reported in (2006) 4 SCC 584. The Supreme Court has discussed several cases while considering the questions as raised above and come to the conclusion that Section 197(1) of the Code of Criminal Procedure indicates that a prosecution cannot be launched against a public servant. The question of sanction or lack of an order of sanction 3 would arise from stage to stage and, therefore, it is proper that it should be considered by the Court at the earliest. In the case of Sankaran Moitra it was said that a mob had gathered on the day of state assembly election and there was disturbance while polling was taking place. There was an attack by a mob in which Lathi charge had to be resorted to by the police party which led to the death of the husband of the complainant. The Court held that it was obviously part of the appellant’s duty to maintain law and order and to present the disruption of polling. It has been alleged that the police constable along with others beat up the husband of the complainant which led to his death. The Supreme Court has held that it was an act done in discharge of the duty. In the present case the petitioner had gone to arrest Asraf Khan who was arrested with a large catche of arms which invoked the wrath of the villagers who attacked the police party. The police constables including the petitioner were to protect themselves, the person they had arrested and to prevent the loot of the arms which had been seized by the Police party. To loot the arms and destroy the evidence seemed to be the aim of the mob. In this context it is alleged that the petitioner is said to have fired, whereas the petitioner has on the other hand specifically alleged in the First Information Report lodged by him that the members of the mob had resorted to firing which killed another member of the mob. In any event, it cannot be said that the entire occurrence did not take place in discharge of the petitioner’s duty and as such it would necessarily attract the provisions of Section 197(1) of the Code of Criminal Procedure. In 4 my opinion, the Court below ought to have considered this question before framing of charges. In the result, I quash the order dated 30.1.2009 by which the Court has framed charges against the petitioner in Sessions Trial No. 115 of 2008/73 of 2008 arising out of Sirdalla (Meskaur) P.S. Case No. 145 of 2005. The State has the liberty to obtain sanction before proceeding the matter. This application is allowed. Sanjay (Sheema Ali Khan, J.)