TMI Blog2000 (10) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... s the situation became out of control, after giving due warning, the appellant was compelled to give order for opening fire and dispersed the mob. On account of such firing, one of the persons died and two others were injured and the appellant then sent a report to his senior officer about the incident. The son of the deceased, who is respondent No. 2, filed a complaint before the Chief Judicial Magistrate, alleging commission of offence by the appellant under Sections 302, 307, 380, 427, 504, 147, 148 and 149 IPC as well as Section 27 of the Arms Act. The Chief Judicial Magistrate by his order dated 24-11-1995, came to the conclusion that there is sufficient evidence available to establish that prima facie case under Sections 302, 307, 147, 148, 149 and 380 is made out against the accused and, therefore, he directed issuance of non-bailable warrants against the appellant and other accused persons. The Chief Judicial Magistrate was also of the opinion that the provisions of Section 197 of the CrPC will have no application to the facts of the case. The appellant then moved the High Court under Section 482 of the CrPC, praying inter alia that no cognizance could be taken without a sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for the accused to wait till the stage of framing of charge is reached and the High Court, therefore was in error in not exercising the jurisdiction vested in law. On the facts of the case, the learned Counsel submitted that the appellant being present at the place of occurrence pursuant to an order of the Magistrate with the Police Force and was required to remove the encroachment in question and he ordered for firing when the situation went out of control, while discharging the duty of removal of encroachment and pursuant to such firing, a person died and two persons were injured, the irresistible conclusion is that the use of police force related to the performance of the official duty of the accused appellant, within the meaning of Section 197 of the CrPC and consequently, without prior sanction of the competent authority, the Court could not have taken cognizance of the offence on the basis of a private complaint. 4. Mr. S.K. Sinha, the learned Counsel appearing for the complainant-respondent as well as Mr. B.B. Singh, the learned Counsel appearing for the State of Bihar, fairly stated that the judgment of this Court in Birendra K. Singh's case has been too wide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is official duty, no Court shall take cognizance of such offence except with the previous sanction: (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, on connection with the affairs of a State, of the State Government. 7. Previous sanction of the competent authority being a pre-condition for the Court in 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 and Ors. 1998CriLJ1242 , a similar contention had been advanced by Mr. Sibbal, the learned senior counsel appearing for the appellants in that case. In that case, the High Court had h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicability of the Section must be judged at the earliest sage of the proceedings and in that case, the Court directed the Magistrate to consider the question of sanction before framing a charge. In yet another case, in the case of P. Saha and Ors. v. M.S. Kochar 1979CriLJ1367 , a three Judge Bench of this Court had held that the question of sanction under Section 197 Cr.P.C. can be raised and considered at any stage of the proceedings and further in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration. This being the position, we are of the considered opinion that the decision of this Court in Birendra K. Singh's case (2000)8SCC498 does not lay down the correct law by directing that the objection on the question of sanction can be raised at the stage of framing of charge and not at any prior point of time. 8. Coming to the second question, it is now well settled by the Constitution Bench decision of this Court in Matajog Dobey v ..... 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