Allahabad High Court
Jyoti Belur vs Central Bureau Of Investigation on 20 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2096
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 04.12.2019 Judgment delivered on 20.12.2019 Court No. - 81 Case :- APPLICATION U/S 482 No. - 5055 of 2017 Applicant :- Jyoti Belur Opposite Party :- Central Bureau Of Investigation Counsel for Applicant :- Apurva Hajela,Satya Prakash Tripathi Counsel for Opposite Party :- Amit Misra,A.G.A.,Gyan Prakash Hon'ble Dinesh Kumar Singh-I,J.
1. Heard the arguments advanced by Sri V.P. Srivastava, learned Sr. Counsel assisted by Sri S.P. Tripathi, learned counsel appearing for the applicant and in opposition Sri Gyan Prakash, learned Sr. Counsel assisted by Sri Sanjay Kumar Yadav, learned counsel appearing for the Central Bureau of Investigation.
2. The present application has been filed with a prayer to set-aside/quash the entire proceedings of S.T. No. 15 of 2011 (C.B.I. v/s Smt. Jyoti Belur), under Section 302, 201 IPC, P.S. SIC-IV, New Delhi as well as the order dated 19.9.2016 passed by the Special Judge, CBI, Court No. 1, Ghaziabad and also a prayer is made to stay the proceedings in this case till the disposal of this application.
3. The submission made by the learned counsel the applicant is that the applicant was Additional Superintendent of Police at the relevant time on 1st posting. An encounter was done by Lal Singh, SHO of four persons, who died, in respect of whom crime no. 138 of 1996 under section 302 IPC was registered at the concerned police station. The Investigating Officer had recorded as many as 66 witnesses and thereafter final report was submitted against the accused applicant. But subsequently she was summoned under sec. 319 Cr. P.C. to face trial in the present case. Against this summoning order revision no. 2708 of 2010 was preferred in which the stay was granted but the said revision was later on dismissed in default on 9/4/2013. Thereafter recall application was moved but even that was dismissed vide order dated 9/7/2013, the same being found barred under section 362 of the Criminal Procedure Code. Against the said order the Apex Court was approached by the applicant but even from there no relief was given and the SLP was rejected. Thereafter, the applicant resigned from service and surrendered citizenship of India and went to UK. It is further argued that no prosecution sanction has been obtained under section 197 Cr. P.C. to prosecute the applicant, while four other co-accused, the prosecution sanction was taken which is evident from para no. 16 of the charge- sheet at page 35 of the paper book. Therefore, it is prayed that the entire proceedings in special case no. 15 of 2011 (CBI vs Smt. Jyoti Belur), under Section 302, 201 IPC, PS: SIC - IV, New Delhi as well as order dated 19/9/2016 passed by the Special Judge, CBI, Court no. 1, Ghaziabad, should be quashed.
4. The submissions made in affidavit filed in support of the application are that the applicant is 1993 batch IPS officer, who was posted as ASP, Modi Nagar, Ghaziabad. On 8/11/1996 an F.I.R. was lodged by one Lal Singh, Station Officer, PS Bhojpur, District Ghaziabad, stating therein that he along with his companion constables were taking accused namely, Ran Pal , Bhagwat and Vinod in official police jeep for recovery of arms in crime no. 138 of 1996 under section 302 IPC to Dausa, Bajrangpur and when police jeep reached Manchari Ki Pulia, the criminals fired upon the police party, then in retaliation the police party also fired back upon the criminals and in the said encounter two criminals died on that very spot and the remaining two escaped to the nearby sugarcane field. The information was instantly communicated through R.T. set to PS Bhojpur as well as Control Office at Modi Nagar, requesting for additional police force. In the meantime Sub Inspector, PS Bhojpur and other staff of Bhojpur police station also reached the spot. Subsequently O P Sagar, the then SP (Rural), Ghaziabad, Smt. Jyoti Belur (applicant), the then ASP, Modi Nagar, Shripal Singh, SI, Modi Nagar, SK Yadav, ASI, PS Niwari, etc. along with the police force reached the spot. On the order of Shri O P Sagar, the police force proceeded to the sugarcane field. In the meantime, the two remaining criminals started firing upon the police force. Shri O P Sagar warned the criminals to surrender, but in vain, therefore in order to overcome the criminals, Shri Sagar directed the police force to fire upon the criminals in the field where they were hiding. In this operation the remaining two criminals also died. Thereafter, cases were registered against four deceased persons on the basis of complaint of Shri Lal Singh being crime no. 142 of 1996 under section 307 IPC and other cases being crime nos. 143 of 1996, 144 of 1996, 145 of 1996 and 146 of 1996 all under Section 25 of Arms Act. Thereafter, a closer report was submitted on 21/1/1996 in the court of ACJM, Ghaziabad. Subsequently, the investigation was transferred to CB CID, on 1/2/1997 which registered the case as RC-7 (S)/97/SI C.IV/LKO and after investigation, it was found that the persons killed on 8/11/96 in encounter were innocent. They have no criminal record and in fact they were not even required by police in any crime number. The investigation revealed that Lal Singh after killing all the four accused had passed false information through RT set to the police station as well as to the control room etc. to the effect that two criminals had been killed and remaining two had escaped to the nearby sugar cane field. It was this false information which persuaded the applicant to move towards the spot along with police force. After four years, a detailed charge- sheet was submitted on 10/9/2000 being charge- sheet no. RC-7 (S)/97/SI C.IV/LK D/ND against five accused persons namely, Lal Singh, Suryabhan, Ranvir Singh, Subhash Chandra and Joginder Singh for commission of offence punishable under Section 307 read with Section 34 IPC in addition to Sections 193, 201 IPC read with 34 IPC against Lal Singh and Joginder Singh. The charge-sheet reveals that the applicant reached at the spot of encounter after alleged killing of all the four persons which is evident from the testimony of eye-witnesses and that she was at Ghaziabad when she received the said message on wireless set and thereafter she reached the spot after about 45 minutes of the encounter having been over. It is also evident that sanction to prosecute the said five accused named in the charge-sheet was given under Section 197 of the Criminal Procedure Code. The trial court after considering the investigation report, framed charges against the five accused under Sections 302, 193, 201 IPC. Subsequently it was revealed that Lal Singh, the then Station Officer, PS, Bhojpur had masterminded the said fake encounter, adopting false affidavits from local people in support of his act. The prosecution had examined a large number of witnesses including PW-7, Mukeem, PW-17 Ranbir Singh, PW-26, Cham Singh, PW-29, Naveen and PW 30 Chandra Pal. Subsequent to recording of these witnesses, the applicant was summoned under Section 319 Cr. P.C. to face trial under Sections 302 and 201 IPC vide order dated 14/9/2007. Against the said order, she preferred revision being Criminal Revision Defective No. 49/2008 which was later on numbered as 2708 of 2010 before High Court challenging the legality in which an interim order dated 6/2/2008 was granted staying the effect and operation of the impugned summoning order. However on 9/4/2013 the said criminal revision was dismissed ex-parte. Thereafter, applicant filed re-call application to get the order dated 9/4/2013 recalled which was rejected vide order dated 9/7/2013, against that she preferred Special Leave Petition before Hon'ble Apex court but the same was dismissed vide order dated 17/4/2014. In the meantime, the applicant resigned from service and her resignation was duly accepted by the Central Government and she moved to United Kingdom in May, 2001 and subsequently she was granted citizenship of UK in March, 2010. It is further submitted that the cognizance taken by the court below is illegal due to having been taken without prior sanction for prosecution as required under Section 197 of the Criminal Procedure Code. Thereafter two applications were moved by her before the court below on 16/2/2016 praying that the summoning order dated 14/9/2007 may be recalled and that the NBW issued against her may be set aside. It was specifically mentioned therein that the CBI had found her innocent and that she has been wrongly roped in false case as she was not charge-sheeted, but the trial court without considering the investigation made by CBI, had summoned the applicant vide order dated 14/9/2007. The facts that the applicant had resigned from service and had become citizen of UK was also brought to the knowledge of the court. It is further submitted that at the time of alleged incident the applicant was a public servant being an IAS officer and was acting in discharge of official duty, therefore it was mandatory to seek sanction under Section 197 to prosecute her. The opposite party had filed an objection dated 10/6/2016 in reply to the application of the applicant but the learned court below in a mechanical manner rejected the said application vide order dated 19/9/2016, which order is impugned in this application. The court below failed to consider the fact that the CBI failed to tender any explanation for not seeking prior sanction to prosecute the applicant. The reliance is placed by the learned counsel the applicant on Surinderjit Singh Mand and another vs State of Punjab and another, (2016) 8 Supreme Court Cases 722 in which in Para 30 and 31 following is held: -
30. The law declared by this Court emerging from the judgments referred to hereinabove, leaves no room for any doubt that under Section 197 of the Code and/or sanction mandated under a special statute (as postulated under Section 19 of the Prevention of Corruption Act) would be a necessary prerequisite before a court of competent jurisdiction takes cognizance of an offence (whether under the Penal Code, or under the special statutory enactment concerned). The procedure for obtaining sanction would be governed by the provisions of the Code and/or as mandated under the special enactment. The words engaged in Section 197 of the Code are, "... no court shall take cognizance of such offence except with previous sanction...".
Likewise sub-section (1) of Section 19 of the Prevention of Corruption Act provides--
"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance ... except with the previous sanction ...."
The mandate is clear and unambiguous that a court "shall not" take cognizance without sanction. The same needs no further elaboration. Therefore, a court just cannot take cognizance without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of the learned counsel for the respondents that where cognizance is taken under Section 319 of the Code, sanction either under Section 197 of the Code (or under the special enactment concerned) is not a mandatory prerequisite.
31. According to learned counsel representing respondent no. 2, the position concluded above, would give the impression, that the determination rendered by a Court under Section 319 of the ''Code', is subservient to the decision of the competent authority under Section 197. No, not at all. The grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction, can similarly be assailed by the complainant or the prosecution."
5. From the side of the CBI, in counter affidavit it is submitted that in the investigation conducted by CBI, it was revealed that four persons were killed by the police on 8/11/1996 in an encounter, who were innocent and had no criminal record and were not required either by Bhojpur police station or any other nearby police station in any criminal case. They had no firearms or any other weapon with them nor did they fire upon police party in the alleged incident. After completion of investigation, competent authority in exercise of powers under Section 197 of Cr.P.C. had accorded sanction for prosecuting the five accused named in the charge-sheet. During trial one accused namely, Ranbir Singh died and against him the case has been abated by order of Special Judge dated 27/4/2004. It is further submitted that during the trial of the case crime no. 12/2004 -CBI vs Lal Singh and others, before Special Judge, Anti-Corruption, U.P. (East), Ghaziabad, the Learned court below vide order dated 14/9/2007 observed that in the charge-sheet, it had been clearly mentioned by the expert that one bullet out of two recovered from the body of the deceased Jasbir Singh was fired from the revolver allotted to the applicant on the date of incident. Therefore, keeping in view this fact as well as on the basis of the statements of some prosecution witnesses, the trial court vide order dated 14/9/2007 summoned the applicants under Section 319 Cr. P.C. and on 6/10/2007 the said order dated 14/9/2007 was challenged by the applicant before Allahabad High Court in Criminal Revision no. 2708/2010, in which among other grounds was taken the ground that sanction to prosecute under Section 197 of the criminal procedure code was not taken. This court vide order dated 9/4/2013 dismissed the prayer of the applicant. The said order then was challenged by the applicant in SLP (criminal) no. 3734 of 2014 in criminal miscellaneous writ petition no. 18397 of 2013 before Hon'ble Apex court, but the said petition was dismissed vide order dated 17/4/2014, therefore the order of the trial court dated 14/9/2007 had become final. Thereafter, the trial court issued summons to the accused at London's address fixing 24/5/2014 for appearance, which had to be reissued on 25/8/2014 because of the earlier summons not being in accordance with MHA's guidelines fixing, 25/8/2014 for appearance. The said summons was sent to MHA on 5/6/2014 for service in UK with the direction that the summons should be submitted as per goverment of U.K.'s proforma. Thereafter a fresh summons dated 25/8/2014 was issued by the trial court fixing 5/12/2014 for appearance and it was informed by the authorities of United Kingdom that the process could not be served to the accused as she had moved from the address given in the request. Therefore, as per the direction of the trial court, fresh address of the accused was obtained from Uttarakhand police and fresh summons dated 4/2/2015 were issued fixing 28/5/2015 for appearance. The said summons were sent to MHA, which in turn was forwarded to UK authorities. However the accused did not appear on the stipulated date i.e. 28/5/2015 deliberately. In the meantime the MHA vide letter dated 10/6/2015 addressed to CBI avoided the copy of the United Kingdom's authority's letter dated 13/5/2015 whereby it was informed that the summons was handed over to the accused on 13/5/2015 personally but she refused to sign the certificate of receipt. The trial court was apprised about the fact. Thereafter the trial court issued non-bailable warrant of arrest against the accused applicant on 1/10/2015 thereafter fresh NBW was issued on 16/1/2016 against the applicant. Further action for extradition of the accused is underway. It is further submitted that the other accused who were alive and faced trial have already been convicted with lifer. Therefore, it is vehemently argued that the prayer for quashing the proceeding be refused. Reliance has also been placed from the side of the CBI on Devendra Prasad Singh vs State of Bihar and another, AIR 2019 Supreme Court 1671. In this case, the High Court of Judicature at Patna had quashed the order dated 11/1/2014 passed by Judicial Magistrate, Patna in a complaint case under Section 323, 341, 379 and 504 IPC. The High Court quashed the complaint essentially on two grounds: first, no sanction under Section 197 of Cr. P.C. was obtained by the prosecution for filing the complaint against respondent no. 2 and the second, there were contradictions in the statements of complainant and the witnesses. It was held that the High Court's order quashing the complaint was not well founded and hence not legally sustainable. So far as the first ground was concerned, it was held that the complaint filed by the appellant against respondent no. 2, having regard to the nature of the allegations made therein, the complainant made a complaint against respondent no. 2, who was a police officer at the relevant time and in view of the Hon'ble Apex court there was no prior sanction required to prosecute respondent no. 2 under Section 197 Cr. P.C. for filing such complaint. It was further held that it could not be contended that respondent no. 2 committed the alleged offences while acting in discharge of her official duties while purporting to act in discharge of her official duties so as to attract the rigour of Section 197 of Cr. P.C.. It was further held that in order to attract the rigour of Section 197 Cr. P.C., it was necessary that the offence alleged against the Government officer must have some nexus or/and relation with the discharge of his official duties as a Government servant. In this case, the Apex Court did not find it to be so. So far as the second ground was concerned, it was held that the High Court while hearing the Application under Section 482 of Cr.P.C., had no jurisdiction to appreciate the statement of witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against the respondent no. 2. It was opined that this could be done only in the trial while deciding issues on merits and by the appellate court while deciding the appeal arising out of the order passed by the trial court but not in Section 482 Cr. P.C. proceeding. Citing the above ruling, it was argued that in the present case, the act of the applicant was not covered within her official duty and therefore there was no need for seeking prosecution sanction under Section 197 Cr. P.C. before prosecuting the applicant.
6. After having heard both the sides learned counsel and having perused the record, I would like to summaries the facts and give my opinion as follows.
7. In the encounter of four persons in which they were killed, five accused were charge-sheeted but the name of the applicant did not appear in the charge- sheet. Subsequently, she was summoned under Section 319 Cr. P.C. by the trial court by order dated 14/9/2007 on the basis of evidence that the .38 bore revolver allotted to the accused applicant, one bullet which was extracted from out of the deceased, was found to have been fired from the said revolver. Against that order, Criminal Revision No. 2708 of 2010 was preferred by her which was dismissed without giving opportunity of hearing to the applicant/her counsel as the court had proceeded to decide the revision on merits and rejected the same vide order dated 9/4/2013. Against the said order, the applicant referred Criminal Miscellaneous Recall Application No. 16857 of 2013 which was rejected vide order dated 9/7/2013 finding the proceedings barred by Section 362 of the Criminal Procedure Code. Against the said order of High Court dated 9/4/2013, Criminal Miscellaneous Petition No. 18397 of 2013 was preferred which was dismissed vide order dated 17/4/2014. Therefore, it is apparent that the trial court's summoning order dated 14/9/2007 remained upheld right up to the Hon'ble Apex court.
8. Now the sole point which has been mainly emphasized by the learned counsel the applicant has to be considered by this court and that is that the prosecution sanction has not been obtained by the prosecution and therefore proceedings would need to be quashed against the applicant. There is no quarrel with the principle that even if an accused has been summoned under Section 319 Cr. P.C. to face trial, that would not deprive him of protection given under Section 197 Cr. P.C. as is apparent from the position of law as stated in Surinderjit Singh's case (supra), but it is also simultaneously true that for getting the umbrella of protection under Section 197 Cr. P.C. the act of the accused must have some nexus with his official duty i.e. the act which has been done, must have been done while acting or purporting to act in the discharge of his official duties. If that is not the position, the accused would not get the umbrella of the said protection. In the case at hand, if the said principle is applied, I find that a bullet fired upon one of the deceased, has been found to have been fired from the official revolver of the applicant and that after investigation by CBI, it has been found that the deceased had no criminal antecedents nor were they wanted in any criminal case at any of the police stations, yet they were done to death in an encounter made by police, of which the applicant is also said to be a party because one of the bullets found embedded in the body of one of the deceased, was found to have been fired from her official revolver. It could, by no stretch of imagination, be taken to be covered under the official duty of the applicant to commit murder of an innocent person. No such evidence has come on record that the said act was performed in official duty, therefore in view of that, in the present case, there was no need for the prosecution to seek prior sanction to prosecute the applicant. Hence this court does not find any infirmity in the impugned order. The same is upheld and the quashing of the criminal proceedings against the applicant deserved to be refused.
9. This application under 482 Cr. P.C. is accordingly dismissed.
Order Date:- 20.12.2019 VPS