JUDGMENT : G.B. SHAH, J. 1. Present appeal, filed by the appellants – original accused, assails the judgment and order dated 09/11/2006, passed by the learned Additional Sessions Judge, Court No. 5, City Sessions Court, Ahmedabad in Sessions Case No. 296 of 2004, whereby, the appellants – original accused came to be convicted for the offence punishable under Section 222 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and the appellant – original accused No. 1 was sentenced to undergo rigorous imprisonment for three years and a fine of Rs.5,000/- and in default of payment of fine, to undergo, further simple imprisonment for one year, whereas, the appellant Nos. 2 to 4 – original accused Nos. 2 to 4 were sentenced to undergo rigorous imprisonment for 2½ years and fine of Rs.2,000/- each and in default of payment of fine, to undergo, further simple imprisonment for six months. 2. Brief facts of the case of the prosecution are that one accused, undergoing sentence in the Vadodara Central Jail, was required to be produced before the City Sessions Court at Ahmedabad on 04/08/2003, for which an escort was arranged. As on that day, since the matter wad adjourned, the said accused was taken for a cup of tea to one of the stalls situated outside the Court compound and on his request to see his ailing mother, escort persons chose to so do by taking him in an auto-rickshaw but when they reached near Hatkeshwar circle, these persons allegedly started nauseating and vomiting as some substance alleged to have been administered by the relatives of the said accused in the tea and while arrangement was being made for medicines from a medical store, the said accused fled away from the custody of the escort persons i.e. the present appellants – accused. Thus, the appellants – accused committed the alleged offence for which, a complaint came to be lodged, in which, the trial culminated into conviction, as aforesaid. 3. Heard Mr. H. M. Parikh, the learned advocate for the appellants – original accused and Mr. K. L. Pandya, learned Additional Public Prosecutor for the respondent – State. 4. Before proceeding with effecting final hearing, Mr. 3. Heard Mr. H. M. Parikh, the learned advocate for the appellants – original accused and Mr. K. L. Pandya, learned Additional Public Prosecutor for the respondent – State. 4. Before proceeding with effecting final hearing, Mr. Parikh, the learned advocate for the appellants original accused drew attention of this Court on the impugned judgment and order and submitted that while considering the evidence on merits, the trial Court has not considered the issue related to sanction to be obtained from the State before proceeding with the police officials under section 197(3) of the Code. He further drew attention of this Court on the judgment and order dated 24/11/2005, passed in Criminal Appeal No. 412 of 2004, in the case of Kantibhai Khushalbhai Vasava and Ors. Vs. State of Gujarat and Anr. and submitted that this High Court as well as the Hon’ble Apex Court have decided this issue at length and finally concluded that if no sanction has been obtained by the concerned prosecuting agency before filing the Charge-sheet, no cognizance of the offence can be taken by the concerned Court and section 197(3) of the Code is also very clear on the said aspect. He further submitted that the issue involved in the present case has been squarely covered by the decision rendered in Kantibhai Khushalbhai Vasava (supra). 5. Mr. Pandya, the learned Additional Public Prosecutor, for the respondent – State, could not distinguish the above referred ratio laid down in Kantibhai Khushalbhai Vasava (supra). 6. This Court has gone through the impugned common judgment and order as well as the decision rendered in the case of Kantibhai Khushalbhai Vasava (supra) together with the relevant provisions of Section 197(3) of the Code. Section 197(3) reads as under: “197. Prosecution of Judges and public servants: (1) …. (2) …. (3) The State Government may, by notification, direct that the provisions of subsection (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein the expression "State Government" were substituted.” 6.1 It has been held in paragraphs 13 to 16 of the decision rendered in Kantibhai Khushalbhai Vasava (supra) as under: “13. In view of all above decisions, it is clear that sanction to prosecute, a police officer is sine qua none if the offences are allegedly committed during the course of their discharge of duty. The appellants were police officers and were assigned the duty to take the prisoners from Baroda Central Jail to Anand Court and during the performance of their duty, the alleged offence was committed. There is no evidence to indicate that before prosecuting the appellants, who were police officers, sanction was obtained. In my view, the learned trial Judge committed error in holding that no sanction was required to be obtained, holding that the protection under Sec.197(2) and (3) is not available to the police officers below the rank of Sub Inspector. 14. In view of above, it is clear that no sanction as is required under Sec.197(3) was obtained before prosecuting the appellants and therefore, the trail Court could not have taken cognizance against them and therefore, the judgment and order of conviction is liable to be set aside. 15. As regards the merits of the case, it is the prosecution case that the appellants being police officers were bound to keep in confinement, the other co-accused charged with offence who were lawfully committed to the custody but negligently permitted such co-convicts to escape from confinement. It is also the case of the prosecution that the co-convicts dropped some substance in tea which made them unconscious and thereafter the co-convict escaped from the custody. The prosecution has examined P.W.11 – Vinaybhai, Exh.32 who was medical officer at Anand Nagarpalika Hospital. In his evidence, he has deposed that he was sure that 'Beladona' poison was given to the appellants but a question mark was put by him in certificate Exh.34 because there are other poisons which could render a person unconscious. He has also deposed that he had taken out three samples from the stomach of the appellants and given to police. The prosecution has also produced medical certificates given by the Doctor after examining the appellants at Exh.34 to 36. There is a question mark in the certificate Exh.34 near the word 'Beladona Poison'. In view of this document, it appears that Doctor himself was not sure about the nature of the poison. 16. The prosecution has produced F.S.L. Report at Exh. 42/2 before the trial Court. There is a question mark in the certificate Exh.34 near the word 'Beladona Poison'. In view of this document, it appears that Doctor himself was not sure about the nature of the poison. 16. The prosecution has produced F.S.L. Report at Exh. 42/2 before the trial Court. It appears that the said document is not given exhibit number though under Sec.294 of Code of Criminal Procedure, the same is required to be given exhibit number. In view of the fact that the F.S.L. Report is a public document; the same can be relied upon. It is therefore ordered to be exhibited. The said F.S.L. Report and the result of the analysis show that the samples did not contain any tranquilizer, seductive or hypnotical element. In view of this report, the prosecution has failed to establish that the appellants were given some drug in tea which made them unconscious. Thus, the prosecution has failed to prove this vital fact.” 7. So far as the case on hand is concerned, it is a fact that valid sanction, which is required to be obtained for prosecuting the appellants herein who are the public servant, as is prescribed under the law and as per the ratio laid down in the aforesaid decision, is not obtained, which is mandatory and the said important aspect, the learned trial Judge has failed to take into consideration while appreciating and evaluating the evidence on record. Under the circumstances, only on that ground, present appeal deserves consideration in favour of the appellants accused and without entering into the merits of the present appeal, I am of the opinion that the ratio laid down in Kantibhai Khushalbhai Vasava (supra) is squarely applicable to the facts of the case on hand and hence, the present appeal deserves to allowed. 8. In view of the aforesaid discussion, present appeal succeeds and is allowed accordingly. The impugned judgment and order dated 09/11/2006, passed by the learned Additional Sessions Judge, Court No. 5, City Sessions Court, Ahmedabad in Sessions Case No. 296 of 2004, is hereby set aside. The appellants – accused are reported to be on bail. They need not to surrender to custody except require so in other case. Their bail bonds shall stand cancelled. Registry to return the R&P to the trial Court forthwith. Appeal allowed.