ORDER : Ganesh Ram Meena, J. 1. This revision petition has been filed by the accused petitioners with a challenge to order dated 19.09.2005, passed by the Court of Addl. Sessions Judge, Laxmangarh, District Alwar (for short, 'the revisional Court') in Criminal Revision No. 34/2005, whereby the revisional Court had set aside the order dated 18.05.2005, passed by the Court of Judicial Magistrate, Kathumar in Criminal Case No. 298/2001 and remanded the matter back to the trial Court with a direction for pre-charge evidence and after hearing the arguments on the charge, to pass an order according to law. 2. By order dated 18.05.2005, which was challenged in revision petition by the complainant respondent, the Judicial Magistrate, on an application filed by the accused petitioner u/S 197 CrPC, discharged the accused petitioners from the allegation of offence u/S 304A IPC . 3. The brief facts of the case are that a criminal case bearing FIR No. 15/1999 was registered at Police Station Khedli for offences punishable u/S 363, 366 IPC as regards the kidnapping of a girl. Since the kidnapped girl could not be traced out by the police, the public started an agitation and a panchayat was held in village Alipur and it was decided to hold next meeting on 13.03.1999 at village Khedli. 4. To maintain the law and order situation, the administration deployed the police force at Samuchi Railway Crossing, Khedli and other important places and police was directed to control the mob so that the law and order situations may not be worse. During that public agitation, the mob started pelting stones on the police and police had to proceed for 'lathi charge' and fire was made in air without any target to control the mob. During the said agitation, several police vehicles were also damaged and other equipment were taken from the police vehicles. Ultimately, to control the mob, the police had to open fire in their defense and in the said incident, one boy named Ramesh Chand died as a result of fire arm injury. 5. After the aforesaid incident, an FIR No. 48/1999 was lodged by one Maman Singh at Police Station Khedli against several persons, who were the part of the mob. 6. 5. After the aforesaid incident, an FIR No. 48/1999 was lodged by one Maman Singh at Police Station Khedli against several persons, who were the part of the mob. 6. One Murari Lal, who alleged to have sustained injuries in firing, also filed a complaint before the Court of Civil Judge (JD) & Judicial Magistrate, Kathumar on 30.03.1999, which was sent to the Police Station Khedli u/S 156(3) CrPC and thereafter FIR No. 66/1999 was registered on 12.04.1999. As per the averments made in that complaint, 300-400 persons were coming towards Samuchi Railway Crossing and to maintain the law and order, the police had to open fire. 7. One Shyam Lal (the father of the deceased Ramesh Chand) also filed a complaint before the Court of Judicial Magistrate, First Class, Kathumar regarding the incident dated 13.03.1999, wherein his son Ramesh Chand sustained fire arm injury and was declared dead. On the said complaint, statements of the complainant witnesses were recorded and cognizance was taken for offence u/S 304A IPC vide order dated 09.08.2001. 8. The petitioners submitted an application u/S 197 CrPC stating that the act for which cognizance has been taken for offence u/S 304A IPC was an act of the petitioners while discharging their duty. Since the act of the petitioners was a part of discharge of their duty, they have a protection u/S 197 CrPC that no proceeding can be initiated against the public servant without seeking prosecution sanction from the competent authority for prosecuting a person for an act which was done while discharging the official duty. 9. The application filed by the petitioners u/S 197 CrPC was opposed by the complainant and it was submitted that the police had directly resorted to opening fire without first taking other measures as tear gas, lathi charge, etc. It was also submitted that the police had opened fire without there being an authority and therefore order of taking cognizance is just and proper in the facts and circumstances of the case. 10. Learned Judicial Magistrate, vide its order dated 18.05.2005 allowed the application filed by the petitioners and discharged them from the allegation for offence punishable u/S 304A IPC . 11. The respondent-Shyam Lal (father of the deceased Ramesh Chand) preferred a revision petition No. 34/2005 before the Addl. 10. Learned Judicial Magistrate, vide its order dated 18.05.2005 allowed the application filed by the petitioners and discharged them from the allegation for offence punishable u/S 304A IPC . 11. The respondent-Shyam Lal (father of the deceased Ramesh Chand) preferred a revision petition No. 34/2005 before the Addl. Sessions Judge, Laxmangarh, Alwar against the order dated 18.05.2005, passed by the Judicial Magistrate of discharging the petitioners from the allegation for offence punishable u/S 304A IPC . The said revision petition was allowed and the order dated 18.05.2005 discharging the petitioners from the allegation for offence 304A IPC was set aside and matter was remanded back with a direction that after summoning the accused petitioners and allowing an opportunity to the complainant for pre- charge evidence and after recording the statements of the witnesses, the order regarding framing of charge may be passed. 12. Learned counsel for the petitioners submits that it is a well settled law that for an act of the public servant, done while discharging his official duty, he cannot be prosecuted or no cognizance can be taken against him without there being a prosecution sanction from the competent authority. He further submits that the act for which the cognizance was taken against the petitioners for offence u/S 304A IPC , was an act while they were discharging their duty after they were deputed or deployed by the administration to control the public mob. Counsel also submits that the learned revisional Court allowed the revision petition without caring to the settled principle of law and provisions of Section 197 CrPC and has just observed that it is only the parents of the deceased boy, who can feel pain. The revisional Court, while setting aside the order passed by the Judicial Magistrate, observed that once the Judicial Magistrate has taken cognizance for an offence then he it is not in his jurisdiction to alter the order in view of the provisions of Section 362 CrPC. Learned revisional Court has also made an observation that the accused petitioners have directly resorted to open fire which comes in purview of causing death with intention to kill the deceased, whereas there is no such intention available on record which could be made the basis of such an observation. 13. Learned Public Prosecutor opposed the prayer made by learned counsel for the accused petitioners. 14. 13. Learned Public Prosecutor opposed the prayer made by learned counsel for the accused petitioners. 14. Learned counsel for the complainant submits that the order of the revisional Court is just and proper in the facts and circumstances of the case and in view of the provisions of law. He further submits that the order passed by the Judicial Magistrate of discharging the accused petitioners from the offence punishable u/S 304A IPC was contrary to the provisions of Section 362 CrPC as Section 362 CrPC prohibits to alter or recall of the order by the same Court. Counsel further submits that the accused petitioners have resorted to opening fire in the name of controlling the mob without the prior order from the competent authority and in such circumstances, the act of the accused petitioners cannot seek shelter under the provisions of Section 197 CrPC. 15. Considered the submissions made by learned counsel appearing for both the parties and also perused the material made available on record. 16. It is a fact on record that the accused petitioners were deployed by the administration for controlling public mob, which was undergoing an agitation because of kidnapping of a girl and could not be traced out by the police. 17. Learned Public Prosecutor does not dispute this fact that the accused petitions were deployed by the administration at the place of occurrence to control the mob. The act of the accused petitioners is that they opened fire. The said act of opening fire was to control the public mob which was agitating as regards the inaction of the police in not tracing out the kidnapped girl. Section 197 CrPC provides that for prosecuting a public servant for an act done while discharging the official duty, a prevision sanction from the competent authority is necessary. Section 197 CrPC reads as follows:- Section 197. Section 197 CrPC provides that for prosecuting a public servant for an act done while discharging the official duty, a prevision sanction from the competent authority is necessary. Section 197 CrPC reads as follows:- Section 197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]- (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, in connection with the affairs of a State, of the State Government: [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.] [Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, 4 section 354D, section 370, section 375, [section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB] or section 509 of the Indian Penal Code (45 of 1860).] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (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. [(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held." 18. This fact is not in dispute that the act of the petitioners for which cognizance has been taken against them is the act which they were discharging their official duty no prevision sanction from the competent authority was taken to prosecute the accused petitioners before taking cognizance against them, therefore, the order of cognizance against the accused petitioners without there being previous sanction is not sustainable. 19. The Hon'ble Apex Court in the case of Amod Kumar Kanth Vs. Association of Victim of Uphar Tragedy & Anr. (2023) 6 SCR 669 has observed as under:- "7. Previous sanction of the competent authority being a precondition 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 [ (1998) 1 SCC 205 : 1998 SCC (Cri) 1] a similar contention had been advanced by Mr Sibal, the learned Senior Counsel appearing for the appellants in that case. In that case, the High Court had held on the application of the accused that the provisions of Section 197 get attracted. Rejecting the contention, this Court had observed: (SCC pp. 217-18, para 23) “The legislative mandate engrafted in sub-section(1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings.” The Court had further observed: (SCC pp. 218-19, para 24) “The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority.” 20. Section 80 of the IPC provides a shelter to a public servant as regards to any kind incident without any criminal intention or knowledge in the doing of lawful act in a lawful manner by the lawful means. Section 80 of the IPC is quoted as under:- "80. Accident in doing a lawful act. —Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. Illustration A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence." 21. Illustration A is at work with a hatchet; the head flies off and kills a man who is standing by. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence." 21. In the facts and circumstances of this case the petitioners are entitled for shelter under Section 80 of IPC . 22. This Court, while considering an appeal in the case of Jay Ranjan Pandey Vs. State of Rajasthan ; SB Criminal Appeal No. 704/2006 , decided on 20.02.2025 has observed as under:- "18. From the extensive scrutiny of the prosecution evidence, as discussed above, the Court finds that the accused appellant when posted at Chowki No.8, where there was some darkness, high winds were blowing after storm and rain and when the deceased was going towards him, he first of all called a challenge. Thereafter, he called 'Thamm' and also called to hands up and when the deceased came near to him then he again called 'Thamm' and asked for the Password and thereafter when the deceased did not stop, he made a fire that too on the lower part of the body of the deceased. Looking to the prosecution evidence in the light of the guidelines for the persons deputed on LMG duty of the Central High Security Jail, Ajmer, this Court can hold that the accused appellant did the lawful act which resulted into an accident and death of the deceased. Section 80 IPC runs as under:- "Section 80:- Accident in doing a lawful act Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution." Hence, the alleged act of the accused appellant is an accident while doing a lawful act i.e the duty. Therefore, the conviction and sentence of the accused appellant for such an act is not sustainable. 19. The learned trial court while convicting the accused appellant has taken into consideration the prosecution evidence in part. The learned trial court has erroneously observed that the accused appellant has shown hurry in calling 'Thamm' and did not try to identify the deceased, whereas he was well known to the voice of the deceased and could have easily identified his voice. The learned trial court has erroneously observed that the accused appellant has shown hurry in calling 'Thamm' and did not try to identify the deceased, whereas he was well known to the voice of the deceased and could have easily identified his voice. The learned trial court has also observed that he has shown hurry in making fire without intimation to the Guard Commander and it is also not clear that before making fire the accused appellant asked the deceased to hands up. The findings of the learned trial court are contrary to the prosecution evidence because PW1 Haripal Singh called a challenge and asked for the Password two times. The hardcore criminals so as to mislead the security may make mimicry of a person or may sound voice of any other person. The trial court has lost sight to this kind of situation that too when there was already an alarm of the sensitive situation of danger. 20. On the scrutiny of the prosecution evidence, it is also very much clear that neither there is mensrea nor motive nor intention of the accused appellant of causing any firearm injury to the deceased, whereas the evidence clearly speaks that the said accident has taken place during discharge of the official duty by the accused appellant. 21. The learned trial court has convicted and sentenced the accused appellant for the offence punishable under section 304 Part-II IPC . For conviction under section 304 Part-II, the basic ingredient is 'the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death'. 22. Taking into consideration the prosecution evidence and the material fact that after adhering to the due process as provided under the guidelines for the LMG duty at Chowki, when the deceased failed to obey the commands and alerts and also failed to disclose the Password, the accused appellant made a fire on the lower part of the body of the deceased, which clearly shows that neither the accused appellant was having any intention to cause death nor it was in his knowledge that the said act may cause the death of the deceased. The prosecution evidence also very clearly reveals that the accused appellant and the deceased were having good relations and therefore, there was no occasion for the accused appellant to cause bodily injury which may result into death. The prosecution evidence clearly shows that the act was a part of the lawful duty of the accused appellant. 23. In view of the discussion made above, the conviction and sentence of the accused appellant is not sustainable and the same deserves to be quashed and set aside." 23. The revisional Court, while allowing the revision petition has also observed that the act of the accused petitioners was of directly opening fire on the public which is an act with intention to cause death of the deceased. The aforesaid observation of the revisional Court is contrary to the facts available on record. The facts available on record clearly speaks that the accused petitioners were deployed by the administration for controlling the public mob while the public was on agitation after kidnapping of a girl. There is no evidence on record that the accused petitioners were having any kind of intention or knowledge as regards the alleged incident of death of the deceased Ramesh Chand. 24. Learned counsel for the complainant has also submitted that the Judicial Magistrate was not having the jurisdiction and was prohibited under the provisions of Section 362 CrPC in altering or recalling the order of taking cognizance. Learned counsel also relied on the order of Hon'ble Apex Court in the case of Narayan Prasad Vs. State of Bihar and Ors. (2019) 14 SCC 726 , decided on 09.03.2017. 25. This Court is also of the view that the learned Judicial Magistrate is prohibited from altering or recalling the order passed by himself, but taking into consideration the overall facts and circumstances of the case as narrated above, this Court would like to exercise the inherent powers as given u/S 482 CrPC to give effect to the provisions of Section 197 CrPC and to secure the ends of justice. Section 197 CrPC provides for a necessary previous sanction to prosecute a public servant for any act done by him while discharging his official duty, then it is obligated upon this Court to ensure that the provisions of Section 197 CrPC are being given effect. Section 197 CrPC provides for a necessary previous sanction to prosecute a public servant for any act done by him while discharging his official duty, then it is obligated upon this Court to ensure that the provisions of Section 197 CrPC are being given effect. In the present case, there was no previous sanction for prosecuting the accused petitioners for offence punishable u/S 304A IPC for an act which was done while they were discharging their duty and in such circumstances, the order of the revisional Court remanding back the matter to the Judicial Magistrate would result of no consequence because the requirement and legal issue of previous sanction as required u/S 197 CrPC would come again. 26. This Court also has ample jurisdiction to take cognizance of the order passed by the Judicial Magistrate of taking cognizance. In the present case, the learned Magistrate has taken cognizance against the accused petitioners who are the public servant without there being any previous sanction from the competent authority as required u/S 197 CrPC for prosecuting the accused petitioners for an act which was a lawful act while discharging their official duty. Hence taking cognizance by the learned Magistrate is also not sustainable. 27. In view of the discussion made above, this Court is of the opinion that the order of the revisional Court as well as the order of the Judicial Magistrate of taking cognizance vide order dated 09.08.2001 are not sustainable in the eyes of law. 28. Accordingly this revision petition is allowed. The order passed by the Addl. Sessions Judge dated 19.09.2005 in Criminal Revision No. 34/2005 is set aside. 29. Consequences to follow. 30. Record of the case be sent back to the concerned Court.