ABDUL WAHAB ANSARI versus STATE OF BIHAR AND ANR.

Citation: [2000] SUPP. 3 S.C.R. 747 · Decided: 17-10-2000 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Appeal(s) allowed

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Judgment (excerpt)

., 
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ABDUL WAHAB ANSARI 
A 
v. 
STATE OF BIHAR AND ANR. 
OCTOBER 17, 2000 
[G.B. PATTANAIK, M.B. SHAH AND S.N. PHUKAN, JJ.] 
B 
Criminal Procedure Code, 1973: Section 197(1) 
Public servant-Commission of offence while discharging official duty-
Congnizance of-Plea regarding previous sanction from Appropriate C 
Authority-Raising of-At what stage-Held, can be raised at any stage of 
proceeding and there is no need to wait for taking such plea till the framing 
of charge. 
· 
Public servant-Appointed as Duty Magistrate to remove the D 
encroachment-Order for firing to control the mob at the encroachment site 
resulting in death of a person and injuring serval others-Held, the action 
of the public servant to order open firing was in discharge of his official 
duties-Provisions of Section 197 is applicable and no cognizance can be 
taken against him without previous sanction from appropriate-Oovernment-
Thus, order of Magistrate quashed 
E 
Appellant, a public servant was appointed as Duty Magistrate for 
removing certain encroachment. When appellant went to the site of 
encroachment, several miscreants armed with weapons, started hurling stones 
and the situation went out of control. Appellant after giving due warning F 
ordered for opening fire to disperse the mob. On account of such firillg, one 
pc~ died and several others injured. Respondent No. 2, son of the deceased 
filed a ·complaint before the Chief Judicial Magistrate alleging that appellant 
had committed offence under Ss. 302, 307, 380, 427, 504, 147, 148 and 149 
IPC as wen as S. 27 of the Arms Act. The Magistrate holding that a prima 
facie case was established against the appellant, issued a non-bailable warrant G 
1 Appd!aa~filed an app,Jjcation before the High Court under Section 482 of the 
Criminal Procedure Code contending that since he was discharging his 
official duty, n~ cogni7.ance can be taken against him without pr;evious sanction 
from the Appropriate Authority under section 197(1) of the Code. However, 
High Court disposed of the said application holding that the plea regarding H 
747 
748 . 
SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R. 
,. 
A previous sanction can be raised at the time of framing of charges. Hence the 
present appeal 
It was contended on behalf of the appellant that under Section 197 of 
the Code of Criminal Procedure, ~he Court is debarred from taking 
cognizance of the offence committecfi~ discharge of official duty except with 
B the previous sanction of the competent authority, and there is no justification 
for the accused to wait till the stage of framing of charge and therefore, High 
Court erred in not exercising the jurisdiction vested in law. 
c 
Allowing the appeal, the Court 
HELD : 1.1. High Court was not justified in holding that the plea 
regarding previous sanction under Section 197(1) of the Code of Criminal 
Procedure, 1973 can be raised only at the stage of framing of charges and 
not prior to it. [754-C) 
D 
1.2. Previous sanction «?fthe competent authority being a pre-condition 
E 
F 
for the Court in ta~ing cognizance of the offence if the offence alleged to 
have been committed by th.e 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. (752-C) 
Suresh Kumar .Bhikamchand Jain v. Pandey Ajay Bhushan and Ors., 
(1998) 1 SCC 205; Ashok Sahu v. Gokul Saikia and Anr., (1990) Supp. SCC 
41 and P. Saha and Ors. v. MS. Kochar, (1979) 4 SCC 177, relied on. 
Birendra K. Singh v. State of Bihar, JT (2000) 8 SC 248, overruled. 
2. In order to attract the provision of S. 197 of the Code, the offence 
alleged to have been committed by the accused must have.something to do, or 
must be related in some manner, with the discharge of official duty. In the 
instant case, appellant had been directed by the Sub-Divisional Magistrate to 
G be present with police force and remove the encroachment in question and in 
course of discharge of his duty to control the mob when he had directed for 
opening of fire, it must be held that the order of opening of fire was in exercise 
of the power conferred upon him and the duty imposed upon him under the 
orders of the Magistrate and in that view of the matter the provisions of Section 
197(1) applies to the facts of the present case. Admittedly, there being

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