ADARSH KUMAR GOEL,J - (1.) THIS petition has been filed for quashing of complaint, Annexure P-1; order of summoning, Annexure P-2 and order of commitment, Annexure P-3 on the ground of absence of sanction under Section 197 of the Code of Criminal Procedure.
(2.) CASE of the complainant is that he was President of Kissan Union and he was on a Dharna on 23.8.1995. The accused opened fire on the crowd on account of which five persons died and many were injured. The agitation was on account of absence of adequate electricity supply and issuance of heavy bills. The agitation was called of on certain assurances, but still remedial measures were not taken leading to fresh agitation on the fateful day. Accused Sukhdev Singh exhorted others that the demonstrators be taught a lesson on which accused Inder Singh and others caused fire. After considering the preliminary evidence, the petitioners have been summoned and they stand committed for trial. Case of the petitioners is that they were on official duties to control the demonstration and the crowd became violent. The SDM first directed use of tear gas and thereafter, ordered opening of fire. The petitioners in obedience to the said order opened fire.
(3.) LEARNED counsel for the petitioners submitted that on admitted facts, the petitioners acted in discharge of their official duties and cannot, thus, be prosecuted without sanction. He has, inter alia, placed reliance on a judgment of the Hon'ble Supreme Court in Abdul Wahab Ansari v. State of Bihar, 2004(2) RCR(Crl.) 215 : 2000(4) RCR(Criminal) 572 : 2001 SCC (Criminal) 18 wherein it was observed as under :- "7. Previous sanction of the competent authority being a precondition for the Court to taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan, 1998(1) RCR(Crl.) 165 : 1998 SCC(Crl.) 1, a similar contention had been advanced by Mr. Sibal, the learned Senior Counsel appearing for the appellants in that case. In that case, the High Court had held on the application of the accused that the provisions of Section 197 get attracted. Rejecting the contention, this Court had observed : (SCC pp. 217-18, para 23) "The legislative mandate engrafted in sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings." The court had further observed : (SCC pp. 218-19, para 24) "The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the Court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary material which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority." ;