Judgment:
ORDER
Sunil Kumar Garg, J.
1. This revision petition has been filed by the complainant-petitioner Mahendra Kumar against the order dated 5-7-2001 passed by the learned Addl. Chief Judicial Magistrate, Balotra in Criminal Case No. 7/96 in which he came to the conclusion that the sanction of SP, Barmer for prosecuting accused respondents Guman Singh and Karan Singh for the offence under Sections 451 and 323, IPC was not proper and thus, by invoking the provisions of Section 258, Cr. P. C, he dropped the proceedings against the accused respondents and discharged them of the said offences.
2. It arises in the following circumstances:-
On 18-12-1995 a report was lodged by the complainant-petitioner in the Police Station Balotra stating inter alia that some police officials entered in his shop illegally and, thereafter, they gave beating to him and some other persons.
On this report, police registered the case and started investigation and during investigation, Mahendra Kumar (present petitioner-complainant), Suresh Kumar and Shrawan Kumar were got medically examined and some injuries were found on their person.
After usual investigation, police submitted challan for the offence under Sections Sections 451 and 323, IPC against the accused Guman Singh, Karan Singh and Jagmal Singh (police officials) in the Court of Addl. Chief Judicial Magistrate, Balotra and on 2-1-1996, the learned Addl. Chief Judicial Magistrate, Balotra took cognizance for the said offences against the accused Guman Singh, Karan Singh and Jagmal Singh.
It may be stated here that accused Jagmal Singh died during the pendency of the case and, therefore, proceedings against him were dropped by the learned Addl. Chief Judicial Magistrate, Balotra vide his order dated 7-11-2000.
Thereafter, an application was moved on behalf of the accused respondents Guman Singh and Karan Singh in the Court of Addl. Chief Judicial Magistrate, Balotra on 12-7-1996 stating therein that since they are police officials, therefore, they could not be prosecuted without a valid sanction, as required under Section 197, Cr. P. C.
The said application of the accused respondents was rejected by the learned Addl. Chief Judicial Magistrate, Balotra through his order dated 24-10-1996.
Aggrieved from the said order dated 24-10-1996 passed by the learned Addl. Chief Judicial Magistrate, Balotra, the accused respondents filed revision before the learned Sessions Judge, Balotra. The learned Sessions Judge, Balotra through his judgment dated 3-3-1997 allowed the revision petition holding inter alia that valid sanction was required for prosecuting the accused respondents and the accused respondents could not be prosecuted unless there was a valid sanction as required under Section 197, Cr. P. C.
Against the said judgment of the learned Sessions Judge, Balotra dated 3-3-1997, a criminal revision was filed by the complainant-petitioner before this Court and the same was dismissed by this Court vide judgment dated 20-3-1998.
Thus, the findings recorded by the learned Sessions Judge, Balotra through his judgment dated 3-3-1997 on the point that valid sanction as required under Section 197, Cr. P. C. for prosecuting accused respondents was must, were confirmed by this Court vide judgment dated 20-3-1998.
Thereafter, on 24-8-1999 in the same case, an application was filed through APP along with sanction which was given by SP, Barmer on 12-8-1999 with the prayer that since sanction has been obtained, therefore, accused respondents be prosecuted now.
On that application, the learned Addl. Chief Judicial Magistrate, Balotra again took cognizance on 8-9-1999 against the accused respondents for the offence under Sections Sections 451 and 323, , IPC.
Thereafter, on 27-2-2001, a fresh application was filed by the accused respondents before the Court of Addl. Chief Judicial Magistrate, Balotra under the provisions of Sections 468 and 197. Cr. P.C. with the prayer that the order dated 8-9-1999 by which cognizance was taken against them, be quashed as the sanction alleged to have been given by the SP, Barmer is illegal and the sanction should have been given by the State Government.
The said application of the accused respondents was decided by the learned Addl. Chief Judicial Magistrate vide his order dated 5-7-2001 in which he came to the conclusion that the proceedings are not barred by limitation as the learned Sessions Judge, Balotra through his judgment dated 3-3-1997 has clearly held that in case proper sanction is obtained, the accused respondents could be prosecuted and on point of sanction, it was observed by the learned Addl. Chief Judicial Magistrate that as per the provisions of Section 197. Cr. P. C, the valid sanction could only be given by the State Government and in the present case, since the sanction to prosecute the accused respondents was given by the SP, Barmer is invalid, therefore, by invoking the provisions of Section 258, Cr. P. C, he dropped the proceedings against the accused respondents and discharged them for the offence under Sections Sections 451 and 323, , IPC.
Aggrieved from the said order dated 5-7-2001 passed by the learned Addl. Chief Judicial Magistrate, Balotra, this revision petition has been filed by the petitioner-complainant.
3. In this revision petition, there are twofold contentions of the learned counsel for the petitioner-complainant; (1) that no sanction is required in the present case as the act which was done by the accused respondents was not done in the discharge of their official duties and (2) that if the sanction is required for proseputing accused respondents, the sanction given by the SP, Barmer is a valid sanction. Hence, it was prayed that this revision petition be allowed and the impugned order dated 5-7-2001 passed by the learned Addl. Chief Judicial Magistrate, Balotra be set aside.
4. On the other hand, the learned coun-sel appearing for the accused respondents supported the impugned order dated 5-7-2001 passed by the learned Addl. Chief Judicial Magistrate, Balotra. He has further submitted that in discharging the accused respondents, no illegality has been committed by the learned Addl. Chief Judicial Magistrate.
5. I have heard the learned counsel for the petitioner-complainant, the learned Public Prosecutor and the learned counsel for the accused respondents and perused the record of the case.
6. So far as the argument that no sanction is required for prosecuting accused respondents is concerned, the same cannot be reagitated now as the learned Sessions Judge, Balotra has clearly observed in his judgment dated 3-3-1997 that valid sanction from the State Government under Section 197, Cr. P. C. was required and that judgment of the learned Sessions Judge dated 3-3-1997 was upheld by this Court vide judgment dated 20-3-1998 passed in the revision petition filed by the petitioner-complainant and in these circumstances, the plea that no sanction for prosecuting accused respondents was required, cannot be accepted and this argument stands rejected.
7. On second contention, the learned Addl. Chief Judicial Magistrate in his impugned order dated 5-7-2001 has clearly observed that the so-called sanction given by the SP, Barmer is no sanction in the eye of law. In my opinion, such findings do not suffer from any illegality.
8. The Delhi High Court in Pritam Singh v. Delhi Admn. 1987 Cri LJ 872 has held that for prosecution of members of Delhi Police Force, sanction of Lt. Governor, Delhi, is necessary and in this respect, the Delhi High Court has relied on the decision of the Hon'ble Supreme Court in Balbir Singh v. D.N. Kadian 1986 Cri LJ (SO 314.
9. From the above authority, it becomes crystal clear that so-called sanction given by the SP, Barmer is no sanction in the eye of law. The learned Addl. Chief Judicial Magistrate has also relied upon the above authority in coming to the conclusion that the sanction given by the SP, Barmer is no sanction in the eye of law.
10. When this being the position, the impugned order dated 5-7-2001 by which the learned Addl. Chief Judicial Magistrate dropped the proceedings against the accused respondents and discharged them lor the offence under Sections Sections 451 and 323, ,1 PC cannot be said to be vitiated by any of the legal formalities.
11. It may be stated here that sanction accorded by authority not competent to do so is no sanction in the eye of law and such defect vitiates the proceedings. From this point of view also, the impugned order dated 5-7-2001 passed by the learned Addl. Chief Judicial Magistrate cannot be challenged.
12. It may further be stated here that the question that sanction is not obtained or if obtained, is not proper may be raised at any stage of proceedings and if through application dated 27-2-2001 the accused respondents have raised this point and the same is decided by the learned Addl. Chief Judicial Magistrate through his order dated 5-7-2001, he has committed no illegality in doing so.
For the reasons stated above, this revision petition filed by the complainant-petitioner Mahendra Kumar is liable to be dismissed and the same is hereby dismissed, after confirming the order dated 5-7-2001 passed by the learned Addl. Chief Judicial Magistrate, Balotra.