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CASE NO.: Appeal (crl.)  245 of 2008

PETITIONER: Subrayappa

RESPONDENT: D. Palakshaiah

DATE OF JUDGMENT: 01/02/2008

BENCH: CJI K. G. Balakrishnan & R. V. Raveendran

JUDGMENT: JUDGMENT O R D E R  

CRIMINAL APPEAL NO.245  OF 2008 (@ SPECIAL LEAVE PETITION (CRL.) NO. 1447 OF 2005)

       Delay condoned. Leave granted. Though notice has been served on  respondents 2 to 4, they have not chosen to enter appearance and contest  these proceedings. Heard the counsel for appellant and first respondent.  

2.      The Appellant herein, who was the complainant, filed a private  complaint against Respondents 1 to 4 herein (Accused Nos. 1, 2, 4 & 5) and  Accused No. 3 who is stated to have died during the pendency of the  proceedings. The complainant alleged that the accused 2 to 5 who    were     police constables came to his house, assaulted his wife and neighbours   and  damaged the household articles; and that when he went to the police station  

to lodge a complaint, the Sub-Inspector (Accused No.1) assaulted him and  subjected him to illegal detention. The learned Magistrate took cognizance  and directed registration of a case against accused for offences punishable  under section 448, 427, 341, 342, 354, 506(B) read with 34 IPC and ordered  issue of summons.  

3.      The first accused (D. Palakshiah) filed an application under section  482 of the Criminal Procedure Code before the High Court to quash the  proceedings on the ground that he was a public servant and the Magistrate  was not justified in taking cognizance of the offences alleged against him as  there was no sanction to prosecute him. His plea was accepted by the High  Court. The High Court, instead of quashing the proceedings as against the  first respondent herein, quashed the entire proceedings pending before the  JMFC, Neelamangala, by the impugned order dated 6.9.2004.  

4.       The contention of the appellant is that as Respondents 2 to 4 did not  challenge the proceedings before JMFC and only the first accused  approached the High Court, the High Court ought to have quashed the  proceedings only in regard to first accused and not against all the accused.  

5.      The offence alleged against Accused Nos. 2, 4 and 5 is different from  the offence alleged against Accused No.1. Accused Nos. 2, 4 and 5 did not  challenge the proceedings on the ground of want of sanction. Therefore,  High Court ought not to have quashed the entire proceedings.  

6.      In the result, we set aside the judgment of the learned Single Judge in

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so far as Accused Nos. 2, 4 and 5 are concerned. The appellant-complainant  would be at liberty to proceed with the case against Accused Nos.2, 4 and 5  and the learned Magistrate may proceed in the matter in accordance with  law. Appeal is disposed of accordingly.