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     IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.  63-64  F 2002

 NANDU & ANR.             ..... APPELLANTS

VERSUS

STATE OF BIHAR & ANR.              .....      RESPONDENTS

O R D E R

1. One Rajan died on 29th of April, 1983. According to the  

appellant, he was the leader of a criminal gang and accused  

in  a  large  number  of  cases.  In  order  to  apprehend  him,  a  

police  team  was  constituted  and  when  they  went  to  

apprehend  him  he  resorted  to  firing  on  police  personnel,  

causing  injuries  to  many  of  them.  Police  party  resorted  to  

firing in self defence in which he was injured and when being  

taken  to  the  Patna  Medical  College  Hospital,  on  way,  he  

succumbed  to  the  injuries.  Aforesaid  incident  led  to  

registration of Kotwali (Jakaknpur) P.S. Case No. 415 dated  

29.4.1983 under  Sections 307,  324/34 of  the Indian Penal

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Code and 25(A)/27 of the Arms Act. The investigation of this  

case  was  supervised  by  the  Superintendent  of  Police,  who  

found the aforesaid story true.

2. However, the mother of said Rajan filed a complaint in  

the  court  of  the  Judicial  Magistrate  inter  alia alleging  that  

appellant No.  2 herein  Kameshwar  Prasad Singh and other  

Police Officers shot dead her son Rajan and in order to hush  

up the matter, a false story was cooked up that Rajan was  

killed  in  an encounter.  Chief  Judicial  Magistrate,  Patna by  

order dated 3rd of April, 1987 passed in Complaint Case no.  

192(c)83 dismissed the complaint. Mother of the said Rajan  

i.e.  complainant  Savitri  Devi  aggrieved  by  the  same,  filed  

Criminal Revision No. 464 of 1988 before the High Court. The  

High Court by its order dated 22nd June, 1999 set aside the  

order of the learned Magistrate dismissing the complaint and  

directed  to  hold  further  enquiry.  Thereafter  the  learned  

Magistrate by order dated 31st of July, 2000 took cognizance  

of the offence under Section 302 of the Indian Penal Code and  

directed for issuance of non-bailable warrant of arrest against  

the appellants herein.

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3. Appellants  challenged  the  aforesaid  order  before  the  

High Court in an application filed under Section 482 of the  

Code  of  Criminal  Procedure  inter alia contending  that their  

prosecution without the sanction of the competent authority  

under Section 197 of the Code of Criminal Procedure is illegal.  

The  High  Court  by  the  impugned  order  dismissed  the  

application  but  while  doing  so  observed  that  the  materials  

suggest that the sanction under Section 197 of the Code of  

Criminal  Procedure  is  necessary  but  in  view  of  an  earlier  

order, it is not inclined to go into this question but gave the  

appellants the liberty to raise the same at the time of framing  

of the charge.  

4. Mr. Nagendra Rai, Senior Advocate appearing on behalf  

of the appellants submits that earlier application filed before  

the High Court was against the dismissal of complaint by the  

Magistrate  and when the said order  was set  aside  and the  

matter  remitted  back further  materials  came into existence

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and taking into consideration the same, later the High Court  

had found sanction necessary but erroneously did not go into  

that question finally in view of the earlier order.  Mr. Gopal  

Singh, learned counsel appears on behalf of the respondent–

State. Respondent No. 2 is dead and her legal heir has been  

substituted but despite service of notice nobody has chosen to  

appear  on  her  behalf.   While  considering  the  question  of  

sanction, the High Court in the impugned order has observed  

as follows:  

“I have a different view in the backdrop and the  circumstances  of  the  case  but  when  a  coordinate Bench has already rejected the plea  of  sanction  in  the  above  mentioned  manner  there remains no scope for this Court to enter  into that arena again.”

4. We are of the opinion that once the High Court in the  

impugned  order  had  come  to  the  aforesaid  conclusion,  it  

ought not to have taken into consideration the observation of  

the Court made earlier.  The aforesaid observation was made  

in  the  revision  application  preferred  against  the  order  of  

dismissal of complaint.  Said order was set aside by the High  

Court  and it  directed  for  further  enquiry.   Thereafter  other

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materials come into existence.  In the face of the same, the  

High Court having come to the conclusion that sanction was  

necessary ought not to have dismissed the application.

5. In the result,  the appeals are allowed, the impugned  

order of the High Court is set aside as also that of the learned  

Chief  Judicial  Magistrate  dated  31st July,  2000  passed  in  

Complaint Case No. 192[C] of 1983.

…......................................J  [HARJIT SINGH BEDI]

.......................................J   [C.K. PRASAD]

NEW DELHI AUGUST 05, 2010.