Allahabad High Court
Parvez Parwaz & Another vs State Of U.P. & Others on 22 February, 2018
Bench: Krishna Murari, Akhilesh Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Case :- CRIMINAL MISC. WRIT PETITION No. - 21733 of 2008 Petitioner :- Parvez Parwaz & Another Respondent :- State Of U.P. & Others Counsel for Petitioner :- S.F.A. Naqvi, Syed Ahmed Faizan Counsel for Respondent :- Govt. Advocate, Manish Goyal, A.K.Sand Hon'ble Krishna Murari,J.
Hon'ble Akhilesh Chandra Sharma,J.
(Delivered by Hon'ble Krishna Murari, J.) The petitioners herein invoking Article 226 of the Constitution of India have filed the instant petition seeking following reliefs :
"(i) issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to investigate case crime no. 2776 of 2008 (Annexure No. 1) in fair and impartial manner by an independent investigating agency and not by Crime Branch of Criminal Investigation Department as per order dt. 3.11.2008 (Annexure No.(9).
(ii) issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to include appropriate section of Indian Penal Code e.g. 120-B, 121, 121-A, 122, 112 I.P.C. and Section 3/4 Prevention of Damages to Public Property Act, 1984 and provision of Religious Institution (Prevention of Misuse) Act, 1988 in crime no. 2776 of 2008 and to investigate the issue of conspiracy also.
(iii) issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to take disciplinary action against the officers who at the relevant point of time failed to act in accordance with law and had not taken any action to initiate criminal action against the culprits.
(iv) issue a writ, order or direction in the nature of mandamus directing and commanding the respondent no. 1 to provide adequate security to the petitioners.
(v) issue a writ, order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(vi) award the cost of the petition in favour of the petitioners."
The aforesaid reliefs were being claimed in the petition as it was originally presented in the background of the following facts :
Factual Matrix Parvez Parwaz, petitioner no. 1 herein claiming himself to be a social activist made an application dt. 16.11.2007under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate, Gorakhpur alleging that one Mahant Yogi Adityanath, Member of Parliament and leader of an organization called 'Hindu Yuva Vahini' had been spreading hatred among Hindu and Muslim. It was further pleaded that on 27.1.2007 when he was returning home from the railway station Gorakhpur at about 8 p.m., the said member of Parliament along with Dr. Radha Mohan Das Agrawal, Member of Legislative Assembly, Dr. Y.D. Singh, Member of Legislative Council, Anju Chowdhary, Mayor of Gorakhpur, Shiv Pratap Shukla, Minister of State and B.J.P. leader and other office bearers and thousand of activists of 'Hindu Yuva Vahini', Bharatiya Janata Party and Vayapar Mandal Gorakhpur as well as various others whom he did not know by name but can recognise were holding meeting, called as 'warning meeting'. The meeting was being addressed by Yogi Adityanath who was saying that if blood of one Hindu is shed then they will not register any F.I.R. with the administration instead they will get 10 muslim killed. If damage is done to shops and properties of Hindus they would indulge in similar activities towards the muslim. Anything can be done to save the glory of Hindu and all should prepare for a fight. He tried to lodge an FIR but the police did not register the same.
The application was registered as Misc. Case No. 900 of 2007 (Parvez Parwaz vs. Yogi Aditya Nath and others). Vide order dated 29.7.2008 the Chief Judicial Magistrate rejected the application on the ground that another first information report regarding the same incident was lodged by one Hazrat son of Bismillah at P.S. Cantt., which was registered as case crime no. 145 of 2007 under Section 147, 436, 427, 506 I.P.C. read with Section 7 of the Criminal Law Amendment Act and Section 2/3 of U.P. Gangster and Anti Social Activities Prevention Act, wherein after investigation charge-sheet had been submitted and thus there was no justification to lodge a fresh F.I.R. in respect of the same incident.
Petitioner no. 1 challenged the order dated 29.7.2008 passed by the Chief Judicial Magistrate, Gorakhpur before this Court by filing Criminal Revision No. 2346 of 2008. A learned single Judge vide judgement and order dated 26.9.2008 allowed the revision and set aside the order passed by the Chief Judicial Magistrate directing him to pass fresh orders on the application dated 16.11.2007 made by the petitioner no. 1. A further direction was issued to ensure that after registration of the first information report on the basis of application, proper investigation be carried out.
In furtherance to the said orders passed by this Court, the Chief Judicial Magistrate vide order dated 17.10.2008 allowed the application and directed the P.S. Cantt, Gorakhpur to register the case under the appropriate Sections and to ensure investigation in terms of the order passed by the High Court.
In compliance of the order, case crime no. 2776 of 2008 under Section 153, 153A, 153B, 295, 295B, 147, 143, 395, 436, 435, 302, 427, 452 I.P.C. read with Section 7 of the Criminal Law Amendment Act was registered as P.S. Cantt., Gorakhpur on 02.11.2008 against the member of Parliament Yogi Adityanath, Dr. Radha Mohan Das Agrawal, Member of Legislative Assembly, Dr. Y.D. Singh, Member of Legislative Council, Anju Chowdhary, Mayor of Gorakhpur, Shiv Pratap Shukla, Minister of State and B.J.P. leader and other office bearers and thousand of activists of 'Hindu Yuva Vahini', Bharatiya Janata Party and Vayapar Mandal Gorakhpur and unknown persons.
Vide order dated 3.11.2008 the State Government passed an order directing the investigation to be carried out by C.B.C.I.D. In the meantime, judgment dated 26.9.2008 passed by this Court was challenged by one accused Anju Chowdhary before the Hon'ble Apex Court by filing Special Leave Petition No. 19675 of 2008. Vide order dated 19.12.2008 leave to appeal was granted and further proceedings in pursuance of the first information report was stayed. The matter was registered as Criminal Appeal No. 2039 of 2012 and vide judgement and order dated 13.12.2012 the appeal was dismissed.
Even before the investigation could gain any momentum Parvez Parwaz along with one Asad Hayat son of Janab I. Dayal resident of district Azamgarh filed the instant petition on 01.12.2008.
On 29.4.2009 writ petition came to be dismissed for want of prosecution. Record indicates that a restoration application along with an application under Section 5 of the Limitation Act seeking condonation of delay in making the restoration application was made by the petitioners on 28.4.2010. The restoration application and the delay condonation application was also dismissed for want of prosecution vide order dated 30.7.2015. Petitioners moved recall/restoration application along with delay condonation application dated 13.12.2015 to recall the order dated 30.7.2015 which remained pending. In the meantime, fresh election for the State Legislative Assembly was held and the Bharatiya Janata Party on attaining majority formed the Government and one of the accused Mahant Yogi Adityanath was elected as the Chief Minister. The newly formed government took oath on 19.03.2017. The recall/restoration application no. 42853 of 2015 came to be listed before the Court on 24.03.2017. After hearing learned counsel for the petitioners as well as learned A.G.A., the Court finding that the prayer made in the recall/restoration application is defective adjourned the proceedings for three weeks leaving it open to the petitioners to amend the prayer of the recall/restoration application by the next date if he so desires. An amendment application was made which was allowed vide order dated 28.4.2017 by making the following order :
"An amendment application as well as supplementary affidavit have been filed today by learned counsel for the petitioners which are taken on record.
Heard Sri S.F.A. Naqvi, learned counsel for the petitioners and Sri Ashish Pandey, learned A.G.A. assisted by Sri Imran Saiyed, learned Brief Holder for the State.
Learned counsel for the petitioners submits that on 24.3.2017, the matter was heard by this Court on the recall/restoration application as well as on merit but due to some defect in the prayer of recall/restoration application, amendment was required in the prayer of recall/restoration application, hence he has filed the amendment application today. He prays that the same may be allowed.
Considering the submissions advanced by learned counsel for the petitioners and the averments made in the amendment application, the amendment application filed in Crl. Misc. Recall/Restoration Application No. 428513 of 2015 is hereby allowed. Office is directed to allot regular number to it.
Learned counsel for the petitioners is directed to make necessary amendment in the said recall/restoration application during the course of the day.
Considered the submissions advanced by learned counsel for the parties and perused the record.
From a perusal of the record, it appears that the matter of sanction regarding prosecution of the accused persons is pending before the State Government and the question of grant of sanction for prosecution is to be decided by the Head of the State Government, who himself is a prime accused in the present F.I.R. lodged by petitioner no. 1.
As the said question which has crop up in the matter before this Court requires proper adjudication, learned counsel for the parties are directed to assist the Court in the matter on the next date fixed by placing legal proposition of law in the matter.
Put up the matter for further argument on 4.5.2017. "
The recall/restoration application was heard on 04.05.2017 and vide order of date both the restoration/recall applications as well as delay condonation application were allowed and the writ petition was restored to its original number.
After restoration of the writ petition to its original number, hearing started on merits and finding some contradictions in the affidavit of compliance dated 24.4..2015 filed by the investigating officer Sri Chandra Bhushan Upadhyay, Gorakhpur Sector, Gorakhpur wherein it was stated that C.B.C.I.D. after investigation has forwarded the draft final report (hereinafter referred to as 'D.F.R.') to higher officials on 09.04.2015 for its approval which is still awaited and the affidavit of compliance dated 17.12.2016/23.12.2016 filed by Sri Anand Narain Singh, Investigating Officer of C.B.C.I.D., Gorakhpur Region, Gorakhpur stating that the State Government has forwarded the D.F.R. along with its approval to the office of Principal Secretary ( Law & Legal Remembrance) for granting sanction for prosecution as required by Section 196 Cr.P.C. directed the Chief Secretary of the State to appear in person before the Court along with entire record of the case including the D.F.R. and file his personal affidavit clarifying the fact. The matter was directed to be listed on 11.5.2017 When the matter was taken up on 11.5.2017 the Chief Secretary of the State of U.P. appeared in person and filed his affidavit wherein it was stated that sanction for prosecution of the accused has been refused by the Principal Secretary (Home), Government of U.P., Lucknow on 3.5.2017. This fact having come on the record of the case, a prayer was made by learned counsel for the petitioners to grant time to amend the prayer by making an appropriate application challenging the order of refusal for grant of sanction for prosecution, which was granted. The Court further restrained the Chief Judicial Magistrate from passing any order on the final report submitted by the C.B.C.I.D. till disposal of the present petition.
Subsequently, an amendment application was made by the petitioners. Initially, objection with respect to maintainability of the amendment application was raised by Sri A.K.Mishra, Additional Advocate General during the course of argument on 28.7.2017. But after exchange of counter and rejoinder affidavit to the amendment application, learned Advocate General appearing on behalf of the State since did not raise any serious objection to the amendment application, the same was allowed vide order dated 31.7.2017 and consequently, amendments were carried out in the writ petition.
Following two reliefs were added in the prayer clause by way of amendment:
(vii) issue a writ, order or direction in the nature of certiorari quashing the impugned letter dt.3.5.2017 (Annexure No. 16 to this writ petition) issue under the signature of Joint Secretary (Home), Government of U.P. to the S.P., C.B.C.I.D. Lucknow whereby state prosecution sanction of the accused persons has been refused.
(viii) issue a writ, order or direction in the nature of certiorari quashing the letter dt.9.5.2017 (Annexure No. 17) issued by the respondent no. 2 addressed to the respondent no. 1 whereby it is mentioned that vide final report dt. 6.5.2017 case has been closed.
During the course of hearing an application dated 04.09.2017 was made by the petitioners seeking to implead five accused persons namely, Yogi Adityanath, Dr. Radha Mohan Das Agrawal, Y.D. Singh, Anju Chowdhary and Shiv Pratap Shukla as respondents no. 5 to 9 to this petition.
We have heard Sri S.F.A. Naqvi along with Syed Ahmed Faizan for the petitioner and Sri Manish Goyal, learned Additional Advocate General along with Sri A.K.Sand, learned Additional Government Advocate-I for the State.
Before proceeding to deal with the issues raised by learned counsel for the parties and arguments made in support thereof, we propose to deal with the impleadment application first.
Impleadment Application Sri S.F.A. Naqvi, learned counsel for the petitioner contended that after incorporation of the prayer to quash the order refusing to grant sanction to prosecute the accused persons in whose favour the order stands, it becomes necessary to implead them and grant opportunity of hearing. It was also submitted that initially the writ petition was filed seeking a prayer to change the investigating agency and to get the investigation done through an independent agency and since the matter was exclusively between the informant and the State and the accused had no role to play, hence, they had not been impleaded as party. But there is a change in the situation after the amendment application has beenallowed and the order refusing to grant sanction for prosecution which was in favour of the accused persons is also under challenge thus, it is appropriate and necessary that they may be impleaded in the writ petition and notices may be issued to them to come forward and participate in the hearing.
Sri Manish Goyal, learned Addl. Advocate General while vehemently opposing the prayer made submission that since the grant of prosecution is only an administrative function and while considering the question, accused is not required to be heard and thus, in a matter questioning the order refusing or granting sanction it is only the Government which is a necessary party and there is no necessity at all to implead the proposed accused persons and the impleadment application is liable to be dismissed.
The issue is no longer res-integra and stands settled by a catina of decision rendered by the Hon'ble Apex Court.
In the case of Superintendent of Police (C.B.I.) vs. Deepak Chaudhary, AIR 1996 SC 186, the accused respondent filed writ petition in the High Court seeking quashing of the order of sanction. One of the ground for challenge was that he not given an opportunity of hearing before granting sanction. The High Court accepted the contention and quashed the sanction order. Before the Hon'ble Apex Court, it was contended on behalf of the appellant that question of giving an opportunity to the charged officer before granting sanction does not arise since it is not a quasi judicial function but purely an administrative function. This argument was accepted by the Hon'ble Apex Court and it was held as under :
"We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a Court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima-facie, the authority is enquired to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction. The grant of sanction, therefore, being administrative act the need to provide an opportunity of hearing the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice."
The same view was taken by the Hon'ble Apex Court in the case of State of Madhya Pradesh vs. Dr. Krishna Chand Saksena, 1996 (11) SCC 439. Reference may also be made to another decision of the Hon'ble Apex Court in the case of Union of India vs. W.N. Chadha, AIR 1993 SC 1082. In the said case, after registration of the case against the accused, the Director, CBI requested the authority in Switzerland for freezing/blocking certain bank accounts of the accused which had relevency in the investigation of the case whereupon Federal Department of Justice and Police in Switzerland made an application before the concerned court which vide order dated 29.1.1990 froze the said bank account and further directed that the account shall remain frozen till 28 February, 1990 and further necessary assistance would be rendered only on receipt of the letter rogatory from a competent judicial authority in India. In response thereto, the C.B.I. approached the Special Judge, Delhi to issue a letter rogatory/request to Switzerland for getting the necessary investigation, which was allowed vide order dated 05.02.1990. In the meantime, certain public interest litigation was filed and the matter travelled up to the Hon'ble Apex Court. Detail facts and orders passed in those cases have no relevance to the controversy herein. What is relevant to mention here is that one of the accused W.N. Chadha filed a criminal writ petition before the High Court of Delhi challenging the legality and validity of the first information report and also the letter rogatory issued by the Special Court. The High Court allowed the writ petition and quashed the first information report as well as letter rogatory issued on two occasions and other proceedings. The issue was taken to the Hon'ble Apex Court by way of Special Leave Petition. One of the issue raised before Hon'ble Apex Court was whether the letter rogatory issued without hearing the accused is violative of principle of natural justice and thereby has become liable to be quashed. While considering the said issue, it was observed in paragraph 80 & 81 as under :
"80. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. In A.S. de Smith's Judicial Review of Administrative Action, 4th Ed. at page 184, it is stated that in administrative law, a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some factors, singly or in combination with another. Those special factors are mentioned under items (1) to (10) under the heading "Exclusion of the audi alteram partem rule".
81. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law 'lifeless; absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation' and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands."
After analyzing the provisions of the Code of Criminal Procedure and various other relevant decisions on the subject, the Hon'ble Apex Court in paragraph 92 as under :
"92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under S. 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under S. 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued.........................."
It may also be relevant to quote the following observations made by the Hon'ble Apex Court in paragraph 98 of the reports :
"98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary."
"104. Merely because the Special Judge heard counsel for the CBI before issuing letter rogatory the respondent cannot make such a complaint that he should have also been given prior notice to present his case as we have repeatedly pointed out that the stage of investigation is only at the door. The order sought for from the Special Judge by the CBI is only for process of judicial assistance from the competent judicial authorities in the Confederation of Switzerland for investigation and collection of evidence. In such a case the accused has no right to raise the voice of opposition."
"105. For the aforementioned discussion, we hold that the facts and circumstances of the case do not attract the audi alteram partem rule requiring a prior notice and an opportunity of being heard to the respondent and that the respondent has never been prejudiced and deprived of his right to property due to the alleged non-compliance of the principle of audi alteram partem."
At this stage, it may also be relevant to refer to the observations made by a Division Bench of our Court in the case of Indian Explosive Limited (Fertilizers Division), Panki Kanpur vs. State of U.P., 1981(2) Lab.L.J. 159 after referring to the decision in Regina [1972(2)QB 342] and NorwestHoist Ltd. v. Secretary of State for Trade, (1978) 1 Ch Div 201(202), which reads as under :
"Thus, it has been recognized by Judges of undoubted eminence that a decision on substantive rights of parties is one thing and a mere decision that another body investigate and decide on those substantive rights is quite another, and the principle of hearing is not applicable to the latter class of cases."
Applying the above principles enunciated by judicial pronouncements, it is more than clear that grant of sanction to prosecute being purely an administrative function, the proposed accused have no right to be heard in the matter and thus, their impleadment sought for by the petitioners is unwarranted and they are not liable to be impleaded. Accordingly, impleadment application is liable to be rejected.
Issue for determination In the backdrop of the facts and the prayer made in the writ petition, issues of grave public importance arising for our consideration can be summarized as under :
(1) When the State fails to perform its statutory and constitutional duty to investigate a crime in a fair and impartial manner, whether the High Court in exercise of its jurisdiction conferred by Article 226 of the Constitution is vested with the power to transfer the investigation to be conducted by any other investigating agency.
(2) Whether in the facts and circumstances of the instant case, the State has failed to perform its statutory duty to conduct a fair investigation in the matter and the same is liable to be transferred to some other independent agency to ensure fair investigation.
(3) Whether the State can pass an order under Section 196 Cr.P.C. in respect of a proposed accused in a criminal case who in the meantime gets elected as the Chief Minister and is the Executive Head as per the scheme provided under Article 163 of the Constitution of India.Issue No. 1
In so far as the issue nos. 1 & 2 are concerned, Sri S.F.A. Naqvi, learned counsel for the petitioners vehemently contended that a statutory duty is cast upon the State to investigate a crime when reported. He further submitted that there has been a complete failure on the part of State machinery to carry out a fair and impartial investigation in the matter, thus, violating the rights of the petitioner/informant of a fair and impartial investigation, a right guaranteed by Article 21 of the Constitution of India. It is next submitted that petitioner has no other remedy available except to invoke the extra-ordinary power conferred upon this Court by Article 226 of the Constitution of India for enforcement of his rights to have a fair and impartial investigation against the persons named in the F.I.R. accused of commission of a cognizable offence.
Refuting the arguments advanced by learned counsel for the petitioners, Sri Manish Goyal, learned Additional Advocate General for the State of U.P. assisted by Sri A.K. Sand, learned A.G.A.-I submitted that petitioners have failed to bring on record, by way of pleadings or otherwise, any material on record to even remotely demonstrate that no proper investigation has been carried out. He further pointed out that F.I.R. was lodged on 2.11.2008 and writ petition with a prayer to transfer investigation to any other independent agency was filed on 01.12.2008 which clearly shows that at the time of filing the petition there was no cause of action available for seeking the said relief. He further submitted that informant has no inherent or vested right to have a investigating agency of his choice for investigation of a particular case.
We have considered rival contentions advanced by learned counsel for the parties.
From the very inception of judicial system discovery and establishment of truth and vindication are the main purpose which makes it imperative that investigation should be fair and impartial. The State/investigating agency is under an obligation and have definite role to play by maintaining a just and equitable balance of competing interests that of the accused and the victim/complainant without losing sight of public interest involved in prosecution of persons who are alleged to have committed offence. Crimes apart from affecting the individual are also public wrongs being in violation of public rights and duties affecting the community at large and harmful to society in general. By the traditional common law method of induction there has emerged in our jurisprudence the principle of fair trial. A criminal trial is a judicial examination of the issues in a case to arrive at a conclusion or in other words adjudication in respect of guilt or innocence of the accused. Courts have to ensure that accused persons are punished. Whenever a deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities the courts have always intervened to ensure that full and material facts come on record so that there might not be miscarriage of justice. Since trial is based on the charges framed by the investigating agency on the basis of materials collected during investigation it is imperative that to ensure a fair trial there must be a fair and impartial investigation. A fair investigation is thus backbone of a fair trial. Hon'ble Apex Court in the case of Mithilesh Kumar Singh vs. State of Rajasthan; 2014 Legal Eagle (S.C) 878 has observed as under :
"3. Importance of a fair and proper investigation cannot be understated. In an adversarial system of administration of justice, fairness of investigation is the very first requirement for the fairness of a trial. A trial based on a partisan motivated, one sided, or biased investigation can hardly be fair. That is because while the trial itself may be procedurally correct, the essence and the purpose thereof may be vitiated by an unfair or ineffective investigation. This Court has in several pronouncements, emphasized the importance of the fairness of the investigation. Reference, in this regard, may be made to the decision of this Court in Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 where this Court while dealing with the fairness of the investigation, said:
"The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India."
Again in the case of Sasi Thomas vs. State & others; (2006) 12 SCC 421, the Hon'ble Apex Court while recognizing lip-fairness of investigation as an important facet of the rule of law observed as under :
"Proper and fair investigation on the part of the investigating officer is the backbone of rule of law. A proper and effective investigation into a serious offence and particularly in a case where there is no direct evidence assumes great significance as collection of adequate materials to prove the circumstantial evidence becomes essential."
Now it is well settled that not only fair trial but fair investigation is also part of Constitutional rights guaranteed under Article 20 and 21 of the Constitution of India. An investigation to be fair, transparent and judicious is the minimum requirement of rule of law.
The issue whether the Hon'ble Apex Court and the High Court in exercise of powers conferred by Article 226 of the Constitution of India have jurisdiction to transfer the investigation stands authoritatively settled by pronouncement of Constitution Bench in the case of State of West Bengal vs. Committee for Protection of Democratic Rights, West Bengal & others; (2010) 3 SCC 571.
The question referred for opinion of the Constitution Bench was whether the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India can direct the C.B.I. to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, even without the consent of the State Government.
After considering the various provisions in the Constitution the doctrine of separation of powers, the power and scope of judicial review, principle of constitutionalism, the legislative powers of the Parliament and State Legislatures, the powers conferred on the Apex Court by Article 32, 142 and 144 of the Constitution and that upon the High Courts by Article 226, the Supreme Court answered the question in paragraph 69 of the reports as under :
"69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly."
In view of above discussions and the authoritative judicial pronouncements, whenever it is established that investigation has not been fair, proper and impartial there is power vested with the High Court to transfer the investigation to be conducted by any other investigating agency and the same can be invoked by the informant/victim or an aggrieved person. Issue no. 1 stands answered accordingly.
Issue No. 2Availability of power and its exercise are two distinct and separate matters. There are well settled norms and principles enunciated by various judicial pronouncements for exercise of the power, Constitution Bench in the case of State of West Bengal vs. Committee for Protection of Democratic Rights, West Bengal & others (Supra), has observed that handing over investigation to C.B.I. can be ordered only in exceptional circumstances and definitely such an order is not to be passed in a routine course merely because the parties have levelled some allegations. It may be relevant to quote following observations made by the Constitution Bench in paragraph 70 of the said report :
"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plentitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramification or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
It may also be pertinent to refer to the decision of the Hon'ble Apex court rendered in the case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. & others vs. Shangoo Ram Arya & another; (2002) 5 SCC 521 wherein it has been held as under :
"5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause. This Court in the said judgment at paragraph 174 of the Report has held thus:
"174. The other direction, namely, the direction to CBI to investigate 'any other offence' is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of 'LIFE' and 'LIBERTY' guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of 'LIFE' has been explained in a manner which has infused 'LIFE' into the letters of Article 21."
The aforesaid observations made by a two Judge Bench of Hon'ble Apex Court was approved by the Constitution Bench in the case of State of West Bengal vs. Committee for Protection of Democratic Rights, West Bengal & others (Supra) by observing as under in paragraph 71 of the reports :
"71. In Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya, this Court had said that an order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material dose disclose a prima facie case calling for an investigation by CBI or any other similar agency. We respectfully concur with these observations.
From the aforesaid judicial pronouncements, it is clear that a decision to direct an investigation by any other investigating agency can only be done if there are sufficient material on record to come to the conclusion that such material discloses a prima faice case for transferring the investigation from the agency to which it has been entrusted by the State to any other agency. It is well settled that same can not be done casually as a matter of routine or merely because some allegations have been made.
In the instant case, what is note worthy is that FIR was lodged on 02.11.2008. Vide order dated 3.11.2008 the State Government entrusted the investigation to C.B.C.I.D. This petition with a prayer to transfer the investigation to any other independent agency was filed on 01.12.2008 i.e. just after 28 days. This fact in itself sufficient to establish non availability of any cause of action to the petitioners for seeking the said relief at the time of filing the petition.
Further there are no averments much less any material on record of the writ petition on the basis of which a conclusion could be drawn that investigation is not proceeding fairly, independently and impartially calling for transferring the same to any other agency.
To justify the above conclusion arrived by us we may refer to the pleadings made by the petitioners.
According to the learned counsel for the petitioners, the factual foundation for seeking the relief of transfer of investigation to some other independent investigating agency are contained in paragraph 17 to 27 of the writ petition which are reproduced hereunder :
" 17. That after passing of the order by this Hon'ble Court, the matter was again tried to be scuttled by the respondent authorities, despite direction given by this Hon'ble Court, the F.I.R. was not lodged and ultimately the same was registered on 2.11.2008 i.e. after about more than a month from the date this Hon'ble Court had passed order for lodging of F.I.R.
18. That as is apparent from very beginning hat the police authorities, with whom the investigation of case crime No.2776 of 2008 had been entrusted, are shielding the accused persons and had tried their level best to delay the matter so that evidences against accused persons may be destroyed. The police authorities not only connived with accused persons but also acted in the most arbitrary and non-judicious manner, although they are bound under the statute to protect and to book culprits for crime committed by them.
19. That biased role against victims of police authorities is apparent from the police reports submitted before court below when application u/s 156(3) Cr.P.C. was under consideration before learned Magistrate. The respondents police authorities not only tried to bury the crime but also tried to shield the accused persons by appreciating them as if because of position of accused persons in the society, they are not liable to be prosecuted for any ghastly offence which may create mayhem and communal disharmony in the society. Another conduct indicating the behaviour of police authorities comes into light immediately after passing of the order by this Hon'ble Court for lodging of the F.I.R., despite the direction by this Hon'ble Court, F.I.R. could not be lodged for a long time and ultimately after more than a month, F.I.R. was lodged on 2.11.2008.
20. That the respondent police authorities had behaved during all this period as if the victims of crime are culprits and culprits who had committed the crime are innocent victims. From very beginning the behaviour of respondent authorities was that crime of any serious nature had been committed, but they are not interested in taking any action whether the same may badly distort the fabric of civil society. It is well settled law that victim of crime should not be discouraged instead the criminal should be. In the present case, the respondents acted contrary to the above said settled legal position and had tried their level best to discourage the victim to seek justice and encourage the criminals to roam free.
21. That the third ingredient of apathy and heartlessness on the part of respondents is apparent from the act that immediately after lodging of the F.I.R. of case crime No.2776 of 2008, the respondents transferred the investigation of case to 3 different investigation agency within a span of less than 24 hours. After lodging of the F.I.R. in a routine manner, the investigation was entrusted to Sub-Inspector Virendra Singh, Incharge of District Crime Report Bureau Gorakhpur. Prior to that, the investigation was entrusted to Senior Sub-Inspector Radhey Ram of P.S. Cantt but his name was scored out which is apparent from the perusal of chik of F.I.R. of crime No.2776 of 2008, thereafter within 24 hours of lodging of F.I.R. i.e. on 3.11.2008 the matter was handed over for investigation to respondent no. 2 by a letter issued by respondent no. 1.
22. That at the time of lodging of F.I.R. section 120-B I.P.C. and other sections were not included although the allegation contained in the F.I.R. are of such diabolic nature. The crime occurred because of deep conspiracy hatched at various levels and if the offence mentioned in the F.I.R. are not investigated concerning the conspiracy hatched to commit such crime, then real culprits will never be put for trial before concerned court and ultimately suffering of the victims will continue and justice will fail. The offences narrated are of very ghastly nature which is easily discernible from an ordinary crime than a program.
23. That off and on, this Hon'ble Court as well as Hon'ble Apex Court had held that investigation of a crime shall be conducted as early as possible after commission of crime and its investigation be conducted in the most fair and impartial manner. The respondents being 'State' miserably failed to implement law and order.
24. That it will not be out of place to mention here that till date investigating agency had not recorded statement of petitioner no. 1 who is informant of said case. The petitioners were never asked to participate in the investigation and their statements were never recorded and if any such attempt is being made, the same is a table work done at some remote place in the backyard of accused persons.
25. That it is sell settled that job of investigating agency is to make investigation in right direction. The investigation of crime must be in consonance with ingredients of the offence and it cannot be done in haphazard and immethodical manner. It has also been held that a proper and effective investigation into serious offences and particularly in a case where there is no direct evidence of conspiracy is available, then the same assumes great significance as collection of adequate material to prove circumstantial evidences becomes more essential. In the present case, the petitioners were not treated fairly, although serious crime of homicide, loot, arson, sedition and conspiracies were hatched to commit the crimes but investigation of crime is zero till date.
26. That at each and every point of time, since 27.1.2007 till date the respondent authorities had shown lack of commitment towards maintenance of rule of law but instead they scuttled the issue of maintenance of public order which is constitutional duty of respondent no. 1 as enshrined in List-2 of Schedule-7 of the Constitution of India.
27. That conduct of the respondent authorities is such pathetic that even a remote observer can decipher that respondents are tyring to shield someone who is ruling above their head. In that process they created all sorts of roadblock in lodging and investigating the case relating to the incident of 27.1.2007 and thereafter in the entire Purvanchal area."
A bare perusal of the paragraphs quoted hereinabove go to show that bald allegations have been made by the petitioners without being supported by any material and further most of the allegations are containing facts prior to the lodging of the first information report. It is also to be taken note of that during the pendency of the writ petition certain supplementary affidavits and amendment application were also filed by the petitioners. Even then no additional fact or material has been brought on record which may even remotely be said to lay down factual foundation for seeking the relief of transfer of investigation.
From the above facts, it is clear that pleadings of the petitioners do not contain any material on a consideration whereof a conclusion could be arrived that investigation is not proceeding in a fair and impartial manner calling for transfer of investigation to some other investigating agency.
However, since much time has elapsed since the petition was filed and in the meantime, investigation came to be completed we thought it fit to call for the original record of the case including the case diary to satisfy our conscience in as much a proper investigation is not only one of the essentials of the criminal justice system and an integral facet of Rule of Law, but is also to ensure the faith and confidence of the people not only in law enforcing agency but also in administration of justice resting in the hands of the court and to avoid loss of confidence in democracy and weakening of Rule of Law. After all the ultimate aim is to bring out the truth and to punish the accused if guilty.
Sri A.K. Sand, learned A.G.A.-I has produced the entire record before us. We have gone through the case diary. Picture which emerges from the perusal of the case diary is as under :
Investigation was resumed by the investigating agency after the judgement dated 13.12.2012 passed by the Hon'ble Apex Court in Criminal Appeal No. 2039 of 2012. On 12.3.2013 petitioner no. 1 was issued notice by C.B.C.I.D. for recording his statement and the same was recorded on 14.3.2013 in the Circle Office of the C.B.C.I.D. A perusal of the case diary goes to show that total in all 21 witnesses were examined which included petitioner no. 1 and certain other witnesses named by him. The statement of four accused including Yogi Adityanath was also recorded. C.B.C.I.D. also recorded the statement of two police officers namely, Shyam Narain Singh, Station Officer and Brijendra Singh whom the petitioner no. 1 alleged that they were present at the time of the incident and were on duty. The case diary further goes to show that another compact disc (DVD) containing the speech of accused Yogi Adityanath was provided as evidence by the petitioner no. 1 on 14.3.2013 to C.B.C.I.D. at the time of recording his statement. The investigating agency obtained a second compact disc on 25.5.2014 containing the admitted voice of alleged accused Yogi Adityanath from Circle Office, Pipraich for comparison with the voice recorded in the compack disk handed over by the petitioner no. 1. Both the compact disc (DVD) was sent by the investigating agency for forensic examination on 02.7.2014 to 'Vidhi Vigyan Prayogshala', Lucknow. However, the said Lab returned the two compact disks to the investigating agency stating that the lab was not equipped to carry out the required forensic analysis. Subsequently, the investigating agency again sent the two compact disks to 'Vidhi Vigyan Prayogshala', Madhuvan Chowk, New Delhi. This Lab also returned the compact disks to the investigating agency on the ground that it was only authorized to carry out analysis of incidents within the territorial jurisdiction of Delhi. Thereafter, the investigating agency after obtaining order from the Additional Chief Judicial Magistrate on 14.8.2014 sent the compact disc (DVD) to the Laboratory of Central Bureau of Investigation, C.G.O. Complex, New Delhi along with the CD containing the admitted sample voice of Yogi Adityanath. The CBI Lab after carrying out the analysis of the compact disC (DVD) submitted reports dt. 13.10.2014 and 14.10.2014. After receiving the report as well as other evidence which came on the record including the statement of witnesses. the investigating agency prepared draft final report (DFR) dated 16.3.2015 charging the accused persons for offence under Section 143, 153, 153A, 295A read with Section 505 I.P.C. and forwarded the same to the superior officers for its approval by the competent authority. Director General (C.B.C.I.D.) approved the D.F.R. on 22.4.2015. Thereafter, vide letter dated 10.7.2015 the matter was forwarded to the Home Department, State of Uttar Pradesh for according sanction for prosecution of the accused persons named therein under Section 143, 153, 153A, 295A and 505 I.P.C. It may be pertinent to mention here at this stage that the investigating agency on the basis of the evidence and material on record found that only offence under Section 143, 153, 153A, 295A & 505 I.P.C. were made out and hence, the accused were not charged with other Section under which the first information report was lodged.
Much emphasis has been laid by learned counsel for the petitioner on the fact that compact disc (DVD) supplied by the petitioner in the court of the Chief Judicial Magistrate along with affidavit on 05.05.2008 in proceedings under Section 156(3) Cr.P.C. was not sent for forensic examination but some fake compact disk was sent, as such, the report submitted by the Laboratory is of no consequence and thus the investigating agency failed to perform its statutory duty to carry out a fair, impartial and judicious investigation.
To support the aforesaid averments, attention of the Court has been drawn to the report of the examination of videos contained in DVD dated 13.10.2014 submitted by the Central Forensic Science Laboratory wherein in clause-7 it is mentioned as under :
"Data from exhibit DVD was transferred but due to crack condition it was partly transferred on Mac computer. All the videos of folder 2nd April 27 2013 were previewed many times with the help of Final cut Express software on time line to check the authenticity/editing and tampering. (Forlder 1st B saffronwar could not be examine as not completely readable)."
Learned counsel for the petitioner submitted that 'Saffronwar' is a documentary created by one Rajiv Kumar Yadav, Sheikh. Mohammad Shahnawaz and Laxman Prasad and was submitted on 03.08.2011 before the Registrar of Copy Rights under the Copy Rights Act vide Diary No. 9207/2011-CO/CF. The Deputy Registrar of Copy Rights granted registration to the cinematography 'Saffronwar' on 21.3.2013 vide registration no. CF-3155 of 2013. It was submitted that since the compact disc (DVD) sent for examination to the CBI's Forensic Laboratory contained the recording of documentary 'Saffronwar' which was produced and certified in 2013 obviously could not have been in existence in CD provided by the petitioner no. 1 in the year 2008 which contained the recording of the speech of the accused made on 27.01.2007. It was further submitted that the aforesaid facts lead to a natural conclusion that the original compact disc (DVD) supplied by the petitioner was not at all sent to the CBI Laboratory for forensic examination and it was some fake and copied compact disk, which in itself is sufficient to demonstrate the malafide of the investigating agency and establish that the investigation has not been fair and proper.
The argument advanced by learned counsel for the petitioners prima-facie appeared to be very attractive inasmuch as a documentary film produced subsequently could not find place in the compact disc (DVD) recording the speech of the accused provided much earlier in point of time. However, the fallacy of the said argument became apparent to us once we waded through the original record produced before us.
Admittedly, a compact disc was filed by the petitioner in proceedings under Section 156(3) Cr.P.C. along with an affidavit on 05.05.2008. The said compact disk is on the record of the court of the Chief Judicial Magistrate in plastic folder and is broken. The Index at Serial No. (6) records that the compact disk is in a broken state.
We have examined it and it is broken in two parts. It is thus clear that the compact disc filed by the petitioner in the court of the Chief Judicial Magistrate was in a broken state which could not have been subjected to forensic analysis, and was never sent for the forensic examination.
The petitioner no. 1 has been harping upon through out that the compact disk submitted by him in the court of the Chief Judicial Magistrate has not been sent for forensic examination but failed to disclose the fact before this Court that it was he who was supplied another compact disc (DVD) to the C.B.C.I.D. at the time of recording of his statement under Section 161 Cr.P.C. which was sent for forensic examination. After analysis, the CBI Lab submitted two reports; one dated 13.10.2014 in respect of video contents and the other dt. 14.10.2014 in respect of voice examination.
The compact disc (DVD) was sent for forensic examination to the Forensic Lab under the order dt. 18.7.2014 of the Addl. Chief Judicial Magistrate, Gorakhpur along with another compact disc (DVD) containing sample voice of accused Yogi Adityanath. The Lab was requested to submit its report on following five issues :
"(1) Whether Compact Disc is original or dubbed ?
(2) Whether the speech of Yogi Adityanath contained in C.D.-I is in continuation or is prepared by amalgamating parts of various speeches ?
(3) Whether the speech in C.D. I & C.D. II is the same person and voice in both the C.Ds is same or there is any difference ?
(4) On what date C.D.-I has been prepared and whether the C.D. contains the details in this rgard ?
(5) Whether C.D.-I is edited and tampered ?"
The forensic examination was carried out in two parts. The video examination was carried out in Photo Division after transferring data from exhibit DVD on Mac computer and was previewed on a number of times with the help of Final Cut Express Software on time line to check the authenticity, editing and tampering and the result of the examination was reported as under :
"DVD contained videos are not original they are edited and tampered."
The report dt.13.10.2014 submitted by the Photo & Scientific Aids Division of the Lab after forensic examination of video contents is being reproduced as under :
"CFSL-2014/P-1181 CFSL-ND-PHOTO-03 PHOTO & SCIENTIFIC AIDS DIVISION CENTRAL FORENSIC SCIENCE LABORATORY CENTRAL BUREAU OF INVESTIGATION BLOCK NO. 4, CGO COMPLEX LODHI ROAD, NEW DELHI - 110003 CFSL 2014/P 1181 Date 13.10.2014 Examination of video contents in DVD To The UCJM-I Gorakhpur (U.P.) 1. Reference FIR No. :- 2776/08, P. S. Cantt. Gorakhpur Letter No. UCJM-I, Gorakhpur (UP) dated 14/8/2014 CFSL No.:- 519/14 (Photo Division) Date of Receipt 18/09/14 2. Details of forwarding note I have received one internal Forwarding note from Physics Division of CFSL regarding Video examination (Originally/editing) of contents and tampering of DVD. 3. Forensic Expert
P. K. Gottam, Graduate (B. A.), Diploma in Photography, Certificate in Colour Photography, Diploma in Videography, Foundation course in forensic science, Certificate in Non-Linear Editing, Orientation course in Finger-Print Photography and Certificate in Animation and Multimedia, Joined as Sr. Sci. Asstt. (Photo) in CFSL on 30.03.1995 subsequently promoted as Sr. Sci. Officer Grade II (Photo) on 30.04.2002 and Sr. Sci. Officer Grade I (Photo) on 17.10.2011.
4. Description of Parcel and seal.
Received one yellow colour paper parcel from Physics Division. One side of the parcel written on it CFSL - 2014/P - 1181, No. 2776/2008, Exhibit CD-1, one signature The UCJM-I, Gorakhpur (UP) and other side of the parcel having five seal impressions of S K C SSO-II (PHY) CFSL CBI NEW DELHI. On opening of the parcel it contains one DVD of make CHASE, 4.7 GB, 16x with remnants one white envelope and one CITY FOCUS news paper (single page) of dated 5 June 2014.
5. Description of Exhibit One DVD which is in cracked condition from the corner. The make of the DVD is CHASE. Where 4.7 GB, 16x is printed.
6. Nature of Examination required Examination of originality, editing and tampering of video contents in DVD.
7. Laboratory Procedure and Analysis Data from exhibit DVD was transferred but due to crack condition it was partly transferred on Mac computer. All the videos of folder 2nd Apr 27 2013 were previewed many times with the help of Final out Express software on time line to check the authenticity/editing and tampering (Folder 1st B saffronwar could not be examine as not completely readable).
8. Result of Examination (Reply of queries) DVD contained videos are not original they are edited and tampered.
Note :
1) This report shall not be reproduced except in full without the written approval of the Director, CFSL, CBI, New Delhi except the judicial court and investigating authorities related to the case.
2) The report is admissible U/S 293 Cr. P. C. In case of summons quote report no. and date).
3) One sealed parcel along with original exhibit and remnants is sealed with the seal of P. K. GOTTAM CFSL CBI and is being returned to the forwarding authority.
Sd./-
(P. K. GOTTAM) Sr. Sci. Officer Gr. I (Phuoto) CFSL/CBI/New Delhi After examination of video contents in the DVD the exhibit CD-I was internally sent for opinion regarding query no. 3.
The voice recorded in exhibit CD-'1' and sample CD-'2' were transferred to Speech Science Laboratory. After forensic examination of questioned voice and specimen voice of Yogi Adityanath query no. (3) was answered as under :
"8. RESULT OF EXAMINATION Regarding Query No. 1, 2 & 5 Separate report No.CFSL-2014/P-1181 dated 13.10.2014 from Photo & Scientific Aids Division is enclosed.Regarding Query No. 3
(i) The auditory examination of questioned voice marked exhibit CD-1(01)(Y) and specimen voice of Yogi Adityanath marked exhibit CD-2(Y) reveal that questioned voice marked exhibit C.D.-1(01) (Y) are similar to the specimen voice marked exhibit CD-2(Y) in respect of their linguistic and phonetic features.
The voice spectrographic examination of questioned voice samples marked exhibits CD-1 (01) (y1) to CC-1 (01) (y8) and specimen voice samples marked exhibits CD-2 (y1) to CD-2 (y8) reveal that the questioned voice samples marked exhibits CD-1 (01) (y8) are similar to specimen voice samples marked exhibits CD-2 (y1) to CD-2 (y8) respectively in respect of their formand frequencies distribution, intonation pattern, no. of formants and other general visual features in spectrograms.
Hence, the voice marked exhibit CD-1 (01) (y) is the probable voice of the person (Yogi Aadityanath) whose specimen voice is marked exhibit CD-2 (y)."
The report dt. 14.10.2014 submitted by Physics Division of the Lab after forensic voice examination reads as under :
CFSL-2014/P-1181 FORM NO.CFSL-CBI-ND-PHY-03 PHYSICS DIVISION CENTRAL FORENSIC SCIENCE LABORATORY Central Bureau of Investigation, Block No. 4, CGO Complex, Lodhi Road, New Delhi - 110003 Dated : 14/10/2014 Report Title : Forensic Voice Examination Report To Hon'ble Upper Chief Judicial Magistrate Gorakhpur 1. REF: FIR 2776/2008 Dated - U/S 143/153A/153B/295/295B 147/143/395/436/435/302/427/452 IPC & 7CLA Act PS Cant, Gorakhpur, UP. 2. Details of Forwarding Memo The case under reference received in this division on 20-08-2014 vide Letter No. --- Dated 14-08-2014 3. FORENSIC EXPERT:
I, Subrat Kumar Choudhury, M.Sc. (Physics), Ph.D. (Forensic Science) is working as SSO-II(Physics). I have undergone training in the field of Forensic Speaker Identification & Tape Authentication and examined more than 225 cases. I have published four research papers in Journals and presented five research papers in All India Forensic Science Conferences and in other conferences.
4. Details of parcels and seals Received on 20-08-2014 a forwarding letter from Hon'ble Upper Chief Judicial Magistrate, Gorakhpur vide letter dated 14-08-2014 along with two sealed parcels, specimen seal impression of "C.J.M. Gorakhpur in Hindi" in wax affixed on a white paper and attested photocopy of FIR comprising of neneteen pages. The parcels described in the forwarding letter are marked as 'CD No.1' & 'CD No. 2' by the forwarding authority. The seals on the parcels were tallied with specimen seal impression and found intact.
Received on 04-09-2014, Letter No. C.B.-03/2013(GKR) dated 03/08/2014 along with transcription of questioned recording comprising of two papers.
The parcel marked exhibit 'CD No. 1' is a white paper envelope bearing seven seals of "C.J.M. Gorakhpur in Hindi". It contained one DVD, which is marked as exhibit 'CD-1' in the laboratory. The DVD was found in cracked condition.
The parcel marked exhibit 'CD No. 2' is a white paper envelope bearing seven seals of "C.J.M. Gorakhpur in Hindi". It contained one DVD, which is marked as exhibit 'CD-2' in the laboratory.
5. Date of opening the exhibits 17th September, 2014
6. Description of the articles contained in the parcels Exhibit CD-1 : It is a DVD of make "CHASE" of 4.7GB capacity. It contained two folders namely, "A cerfew2007.3" and "B Saffronwar". These two forders contain question video recordings in different files/folders along with other files. The video recordings contained in folder "B saffronwar" are not readable since the DVD is in cracked condition. The video recording namely "AVSEQ01.DAT" of duration 10 min 46.766 seconds contained in folder "A cerfew2007.3\cerfew2007.1" is considered for examination in respect of the received transcription. Audio from the video recording "AVSEQ01.DAT" was extracted and marked as exhibit CD-1(01).
The clearly utterences of a person starting with sentence, namely ".... Sab Drishey Gorakhpur Ke Ander....." stated to be spoken by Yogi Aadityanath marked CD-1(01)(Y). The common clearly audible sentences/words, namely "Chetawni", "Bandh", "Hoga", "Bharatiya Janta", "Party", "Yahaan Par", "Karwahi" & "Karke" with respect to the specimen voice of Yogi Aadityanath recorded in DVD marked exhibit CD-2 has been selected from the voice marked exhibit CD-1(01)(Y) for voice spectrographic analysis. These sentences/words are marked exhibits CD-1(01)(y1) to CD-1(01)(y8) respectively.
Exhibit CD-1 is internally sent to Photo & Scientific Aids Division in sealed condition for opinion regarding Query No. 1, 2 and 5.
Exhibit CD-2 : It is a DVD of make "moserbaer' having printed number '202557-REC23023'. It contained one video recording namely, "M2U00055.MPG" said to contain specimen voice recording of Yogi Aadityanath. The audio from the video recording "M2U00055.MPG" was extracted, which said to contain specimen voice recording of Yogi Aadityanath starting with the sentence namely "Kishano Ke Samney Moun Ho Jaten Hain ......" marked exhibit CD-2(Y). The sentences/words, namely, "Chetawni", "Bandh", "Hoga", "Bharatiya Janta", "Party", "Yahaan Par", "Karwahi" & "Karke" have been selected from the specimen voice recording of Yogi Aadityanath marked exhibit CD-2(Y) for voice spectrographic analysis. These sentences are marked exhibits CD-2(y1) to CD-2(y8) respectively.
7. Laboratory Procedure, Experiment & Analysis The voices recorded in exhibits marked 'CD-1' & 'CD-2' were transferred to Speech Science Laboratory (SSL Professional Exition Ver 4.1).
The utterances/sentences of questioned speaker whose voice marked exhibit CD-1(01)(Y) was segregated from exhibit CD-1(01). The auditory features in the utterances of the speaker in questioned voice were observed, from their segregated voice and consolidated effects of the prominent auditory features of the question speaker were noted. Similar process was adopted for auditory analysis of the specimen voice of Yogi Aadityanath marked exhibit CD-2(Y). The phonetic and linguistic features of questioned voice marked exhibit CD-1(01)(Y) was found similar to the specimen voice sample marked exhibit Cd-2(Y) and documented in a work sheet. The utterances marked exhibits CD-1(01)(y1) to CD-1(01)(y8) and CD-2(y1) to CD-2(y8) were further subjected to voice spectrographic analysis on SSL for their spectrograms. The acoustic features, namely no. of formants, formant frequency distribution, intonation pattern distribution and other features of questioned voice samples marked exhibits CD-1(01)(y1) to CD-1(01)9y8) correspond with their respective features in the specimen utterances marked exhibits CD-2(y1) to CD-2(y8) respectively.
"8. RESULT OF EXAMINATION Regarding Query No. 1, 2 & 5 Separate report No.CFSL-2014/P-1181 dated 13.10.2014 from Photo & Scientific Aids Division is enclosed.
Regarding Query No. 3(i) The auditory examination of questioned voice marked exhibit CD-1(01)(Y) and specimen voice of Yogi Adityanath marked exhibit CD-2(Y) reveal that questioned voice marked exhibit C.D.-1(01) (Y) are similar to the specimen voice marked exhibit CD-2(Y) in respect of their linguistic and phonetic features.
The voice spectrographic examination of questioned voice samples marked exhibits CD-1 (01) (y1) to CC-1 (01) (y8) and specimen voice samples marked exhibits CD-2 (y1) to CD-2 (y8) reveal that the questioned voice samples marked exhibits CD-1 (01) (y8) are similar to specimen voice samples marked exhibits CD-2 (y1) to CD-2 (y8) respectively in respect of their formand frequencies distribution, intonation pattern, no. of formants and other general visual features in spectrograms.
Hence, the voice marked exhibit CD-1 (01) (y) is the probable voice of the person (Yogi Aadityanath) whose specimen voice is marked exhibit CD-2 (y)."
Regarding Query No. 4The DVD volume marked exhibit CD-1was created on 27.04.2013.
NOTE :
(a) This report shall not be re-produced except in full without the written approval of the Director, CFSL, New Delhi except by the Judicial Courts and investigating authorities related to the case.
(b) The parcel marked exhibit 'CD-2' is returned to the forwarding authority along with its original packing in a sealed parcel, sealed with the seals of "SKC SSO-II (PHY) CFSL/CBI NEW DELHI".
(c) The parcl marked exhibit 'CD-1' is returned to the forwarding authority along with its original packing in a sealed parcel, sealed with the seals of "+P.K.GOTTAM+CFSL CBI and Ashoka emblem at the centre".
(SUBRAT KUMAR CHOUDHURY) SR.SCIENTIFIC OFFICER, GR.II
-CUM-ASSTT. CHEMICAL EXAMINER TO THE GOVERNMENT OF INDIA CFSL: CBI: NEW DELHI Learned counsel for the petitioner submitted that even if it is presumed that the compact disc (DVD) was supplied by the petitioner no. 1 to the investigating agency on 14.03.2013 when his statement was recorded as alleged by the respondent, the date of creation of the Compact Disc sent for forensic examination being 27.4.2013 conclusively establishes that even the said Compact Disc (DVD) was not sent for forensic examination.
We have given our anxious consideration to this aspect of the matter.
The clock, one of the component of the computer system, is a device in the system itself which serves to keep the time of day and date as perceived by a human being i.e. to say human sense. Apart from co-ordinating of all the components of the CPU (Central Processing Unit), the operations are synchronised to the pulses of an electronic clock, which acts as a master control. The book, 'Electronic Evidence: Disclosure, Discovery and Admissibility' First edition published by Butterworths in the Chapter of 'Sources of Digital Evidence' while dealing with the component of clock of a computer has stated as under :
"(a) it is a device that produces pulses of time to ensure that events are synchronised and occur in a predictable order. The clock coordinates all the components of the CPU. Each step in any operation must follow in order and some operations run at different speeds. The operations are synchronised to the pulses of an electronic clock, thus the clock acts as the master control. The frequency of pulses is controlled by a phase locked loop ('PIL') which, in turn, is regulated by a quartz crystal. The speed at which the crystal oscillates, the step-up ration of the PIL and the number of steps that each instruction requires will determine the speed at which the computer performs;
(b) the clock also serves to keep the time of day and date in a human sense. Larger, server systems synchronise their clocks with a reliable time source, such as Network Time Protocol, available over the Internet.
The built-in clock is powered by a battery and runs continuously, even when the computer is switched off. Older computers may not 'boot up' when they are turned on because the battery has run down, causing the CPU to fail to recall the hardware settings. It should also be noted that the clock is ready accurate, regardless of the device. There is matter of grave importance because assumptions about the accuracy or otherwise of a clock can lead to misleading conclusions.
The clock features a great deal in digital evidence, as the case of Harold Shipman in 1999. Detective Sergeant John Ashley of the Greater Manchester Police examined the computers in Shipman's office. In particular, he examined the patient records recorded on the Microdot program, which is designed as a computerised medical records database. He examined the records relating to a number of victims and demonstrated that a number of records were altered retrospectively. He was cross-examined on Wednesday, 10th November, 1000 by Mr Winter. Mr Winter demonstrated that it was possible to alter the information in the software and then change the date of the computer clock to hid the evidence relating to the change made in the software."
In a paper published by SANS Institute dowloaded from the SANS Computer Forensics and e-Discovery site titled as 'Fight Crime' "Unravel incidents ..... one byte at a time" in the chapter 'Detection of Backdating the System Clock in Windows' reads as under :
"In the digital forensic industry, evidence concerning date andtime is a fundamental part of many investigations. As one of the most commonly used anti-forensic approaches, system backdating has appeared in more and more investigations. Since the system clock can be set back manually, it is important for investigations to identify the reliability of date and time so as to make further decision. However, there is no simple way to tell whether the system clock has been backdated or tampered especially when it was subsequently reset to the correct time. There are variety of artifacts to detect the behavior of backdating the system clock. If the investigator needs to prove the hypothesis that "the system clock has not been backdated." he or she must examine multiple artifacts for corroboration."
From the aforesaid opinion of the experts of the field, it is very much clear that date and time recorded is not always accurate and can also be subjected to tampering. The tampering, if any done, can be detected and verified only through the test of authenticity of the source i.e. electronic gadget whose output is in the form of CD or VCD or print out etc. Admittedly, the source from which the compact disk in question was prepared was not made available for examination by the Forensic Lab and thus, tampering or editing, if any, in the date and time recorded in the disk was not verifiable. Further since the CD itself was found to be edited and tampered, the tampering/editing in the date stamp on the CD cannot be ruled out conclusively.
From the discussions hereinabove, a perusal of the case diary and in depth analysis of the investigation carried out as reflected from the case diary, we do not find that there was any failure on the part of the investigating agency to perform its statutory duty of making investigation in a fair, impartial and independent manner and thus, we see no good ground to transfer the investigation to some other agency.
Issue No. 2 above is answered accordingly.
Issue No. 3With regard to issue no. 3, Sri S.F.A. Naqvi contended that Chief Minister is the Head of Council of Ministers under whom the entire State machinery functions. The grant of sanction for prosecution provided by Section 196(1) Cr.P.C. is a function to be performed by State which is being headed by a person who himself is an accused and thus the impugned order refusing to grant sanction suffers from the vice of bias and is thus unsustainable. It was further pointed out that the impugned order refusing sanction is de hors the Rules of Business whereunder it is the Governor of the State who is empowered to consider the question of grant of sanction and as such the impugned order is not only illegal but also without jurisdiction. It was next submitted that the impugned order is based only on the report of C.S.F.L. Lab dt. 13.10.2014/14.10.2014 in respect of the compact disc (DVD) and without considering other material and evidence on record, hence, is vitiated in law.
Sri Manish Goyal, Addl. Advocate General along with Sri A.K.Sand, A.G.A.-I refuting the arguments made on behalf of the petitioners submitted that order of sanction under Section 196 Cr.P.C. is to be passed by the State Government and under the Constitutional Scheme Chief Minister is only head of Council of Ministers and cannot be equated with State. It was further submitted that State is well within its domain to pass orders refusing to grant sanction for prosecution if from the record it transpires no offence is made out.
We have considered the rival contentions. To recapitulate the facts relevant for adjudication of the issue, the C.B.C.I.D. after completing the investigation and on an analysis of evidence prepared a draft final report (DFR) dt. 16.3.2015 against the accused persons for offence under Section 143, 153, 153A, 295A and 505 I.P.C. and forwarded the same to the Competent Authority namely, Director General (C.B.C.I.D.) who in turn forwarded the same to the Home Department for according sanction for prosecution of the accused. Needless to say that in respect of other offences under which also the F.I.R. was lodged since were not found to be substantiated by the investigating agency, from the material and evidence on record, the DFR did not include the said Sections.
Section 196 Cr.P.C. prescribes for a previous sanction of the Central Government or the State Government, as the case may be for prosecution for offences against the State and criminal conspiracy to commit such offence. The relevant part of said Section reads as under :
"196. Procedure for offences against the State and for criminal conspiracy to commit such offence.--(1) No Court shall take cognizance of--
(a) any offence punishable under Chapter VI or under section 153A, section 295 A or sub-section (1) of section 505 of the Indian Penal Code (45 of 1860), or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government.
(1A) No Court shall take cognizance of--
(a) any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860), or
(b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.
(2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the limitation of the proceedings:
Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.
3) The Central Government or the State Government may, before according sanction under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under sub-section (1A) and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of section 155."
The object behind the requirement of grant of sanction to prosecute embodied either under Code of Criminal Procedure or the Prevention of Corruption Act are designed as a check on frivolous mischevious and unscrupulous attempt to prosecute an honest public servant.
Section 196 Cr.P.C. prohibits courts from taking cognizance of certain kinds of offences which Parliament by Law has considered to be offences unless sanction has been accorded by the Central Government or the State Government or the case may be.
Article 1 of the Constitution provides that India, that is Bharat is Union of States and Article 1(2) provides that States and its territories shall be as specified in the First Schedule.
Our Constitution embodies the Parliamentary or Cabinet System of Government of the British model both for the Union and the States. Under the Cabinet System of government as embodied in our Constitution the President is the constitutional head of the Union and he exercises his powers and functions conferred upon him by or under the Constitution on the aid and advice of Council of Ministers. Only exception being Article 103 whereunder the President acts only according to opinion of Election Commission expressed in relation to question whether a member of either House of Parliament has become subject to any disqualifications.
Similarly, Governor is the Constitutional Head of the State and exercises powers and functions conferred upon him by or under the Constitution on the aid and advise of his Council of Ministers. Save in the situation envisaged in the Constitution where the Governor is required by or under the Constitution to exercise functions in his discretion.
Executive power is the residue power which does not fall within the legislative or judicial function. Article 53(1) of the Constitution provides that the executive power of the Union shall be vested in the President and shall be exercised by him directly or through officer sub-ordinate to him in accordance with the Constitution. Similarly, in the case of State, under Article 154(1) the executive power is vested in the Governor and is liable to be exercised by him either directly or through officer sub-ordinate to him in accordance with the Constitution.
Article 77 of the Constitution provides the provisions for conduct of business of Government of India. Similarly, Article 166 of the Constitution, which reads as under, provides for conduct of business of the Governor of a State :
"Article 166. Conduct of business of the Government of a State.- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion."
Hon'ble Apex Court in the case of Shamsher Singh vs. State of Punjab, 1974(2) SCC 83 while explaining the executive powers of the President of India and a Governor of the State has held as under :
"30. In all cases in which the President or the Governor exercises his function conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Articles 77 (3) and 166 (3) respectively. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function in Articles 123, 213, 311 (2) proviso (c ), 317, 352 (1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. Neither Article 77 (3) nor Article 166(3) provides for any delegation of power. Both Articles 77(3) and 166(3) provide that the President under Article 77(3) and the Governor under Article 166(3) shall make rules for the more convenient transaction of the business of the Government and the allocation of business among the Ministers of the said business. The Rules of Business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or officer under the Rules of Business made under these two articles, viz., Article 77(3) in the case of the President and Article 166 (3) in the case of the Governor of the State is the decision of the President or the Governor respectively."
"31. Further the Rules of Business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor, as the case may be, are sources of the Rules of Business. These provisions are for the discharge of the executive powers and functions of the Government in the name ofo the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Minister's department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister (see Halsbury's Laws of Enjgland 4th Ed., Vol. I, paragraph 748 at p. 170 and Carltona Ltd. V. Works Commissioners, (1943) 2 All ER 560)."
As already discussed above, Article 166(3) of the Constitution empowers the Governor to make rules for convenient transaction of the business of the government and for allocation of business among ministers. In exercise of the said constitutional power, the Governor of Uttar Pradesh has framed rules known as "U.P. Rules of Business, 1975", which are extracted hereunder :
"The Uttar Pradesh Rules of Business, 1975 IN exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution of India, the Governor of Uttar Pradesh is pleased to make the following Rules, namely:
1. Short title.- These Rules may be called the Uttar Pradesh Rules of Business, 1975.
2. Definition.- In these Rules :-
(1) "Department" means any of the Departments specified in the Business of Uttar Pradesh (Allocation) Rules, 1975.
(2) "Secretary" means a Principal Secretary/Secretary to the State Government.
3. Disposal of Business.- Subject to the provisions of these Rules in regard to consultation with other departments and submission of cases to the Chief Minister the cabinet and the Governor, all business allotted, to a department under the Business of U.P. (Allocation) Rules, 1975, shall be disposed of by or under the general or special direction of the Minister-in-charge.
4. Inter-Departmental Consultations. - (1) When the subject to a case concerns more than one department no order shall be issued until all such departments have concurred, or failing such concurrence, a decision thereon has been taken by or under the authority of the Cabinet.
Explanation - Every case in which a decision, if taken in one department, is likely to affect the transaction of business allotted to another department, shall be deemed to be a case the subject or which concerns more than one department.
(2) Unless the case is full covered by powers to sanction expenditure or to appropriate or re-appropriate funds, conferred by any general or special orders made by the Finance Department, no department shall, without the previous concurrence or the Finance Department, issue any orders which may -
(a) involve any abandonment of revenue or involve any expenditure for which no provision has been made in the Appropriation Act;
(b) involve any grant of land or assignment of revenue or concession, grant lease or licence of mineral or forest rights of a right to water power or any easement or privilege in respect of such concession;
(c) relate to the number or grade of posts, or to the strength of a service, or to the pay or allowances of Government servants or to any other conditions of their service having financial implications; or Provided that no orders of the nature specified in clause (c) shall be issued in respect of the Finance Department without the previous concurrence of the Department of Personnel.
(3) The Law Department shall be consulted on:
(a) proposals for legislation;
(b) the making of rules and orders of a general character in the exercise of a statutory power conferred on the Government; and
(c) the preparation of contracts and assurances to be entered into by the Government.
(4) Unless the case is fully covered by a decision or advice previously given by the Department of Personnel that Department shall be consulted on all matters involving-
(a) The Determination of the methods of recruitment and conditions of service of general application to Government servants in civil employment, and
(b) the interpretation of the existing orders of general application relating to such recruitment or conditions of service.
(5) Notwithstanding anything contained in sub-rules (1), (2) and (4), the Department-in-charge of a case may, while consulting any Department other than the Law Department and Finance Department, as required under these rules, set a time limit, which shall ordinarily not be less than two weeks, and if the comments of the Department consulted are not received within that time limit, the Department-in-charge of the case may presume that the Department consulted has no comments to offer or no views to express. It may thereupon recall its file from the Department consulted and take its own decision accordingly, except where these rules require the concurrence of the Department consulted.
(6) For the removal of doubts, it is hereby declared that the mere fact that the advice of any other Department is sought should not mean that its consent is necessary, and the Department seeking advice may take its own decision according to these rules while differing from the Department consulted.
5. Request for Papers. - (1) The Chief Minister may call for papers from any department.
(2) The Finance Minister may call for papers from any department in which financial consideration is involved.
(3) Any Minister may ask to see papers in any other department if they are related to or required for the consideration of any case before him.
(4) (a) The Cabinet Secretary/Chief Secretary may, on the orders of the Chief Minister or of any Minister or of his own motion, ask to see papers relating to any case in any Department and any such request by him shall be complied with by the Secretary of the Department concerned.
((b) The Cabinet Secretary/Chief Secretary may, after examination of the case, submit if for the orders of the Minister-in-charge of the Chief Minister through the Minister-in-charge.
6. Committee of Cabinet. - (1) Ad hoc Committee of Ministers may be appointed by the Cabinet or by the Chief Minister for investigating and reporting to the Cabinet on such matters as may be specified, and, if so authorized by the Cabinet, for taking decision on such matters.
(2) Any decision taken by an Ad hoc Committee may be reviewed by the Cabinet.
(3) No case which concerns more than one department shall be brought before an Ad hoc Committee of the Cabinet until all the departments concerned have been consulted.
7. Submission of cases to the Cabinet. - All cases specified in the First Schedule to these Rules shall be brought before the Cabinet:
Provided that no case which concerns more than one department shall, save in cases of urgency, be brought before the Cabinet until all the departments concerned have been consulted.
8. Submission of cases to the Chief Minister and the Governor. - All cases of the nature specified in the Second Schedule to these Rules shall, before the issue of orders thereon, be submitted to the Chief Minister or to the Governor or to the Chief Minister and the Governor as indicated therein.
9. Submission of periodical returns to the Cabinet. - Each department shall submit to the Cabinet a periodical summary of its principal activities and such other periodical returns, as the Cabinet or the Chief Minister may from time to time require.
10. Responsibility of Departmental Secretaries. - In each department, the Secretary (which term includes a Special Secretary or Joint Secretary, if any, in independent charge) shall be the administrative head thereof, and shall be responsible for the proper transaction of business and the careful observance of these rules in that department and if he considers that there has been material departure from them he shall personally bring the matter to the notice of the Minister-in-charge and Chief Secretary, the Principal Secretary/ Secretary, Chief Minister will be responsible.
11. Departure from Rules. - The Chief Minister may, in any classes of cases permit or condone a departure from these rules to the extent he deems necessary.
12. Supplementary Instructions. - These Rules may to such extent as may be necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister.
13.(1) The Uttar Pradesh Rules of Business, 1955 are hereby rescinded except as respects things done or omitted to be done thereunder.
(2) Notwithstanding such recession, the U.P. Secretariat Instructions, 1955 shall, until rescinded or amended by instructions issued under rule 12 of these rules continue in force as if they were issued under the said rule 12."
THE FIRST SCHEDULE (Rule 7) Cases which shall be brought before the cabinet
1. Proposal for the appointment or removal of the Advocate General or for determining or varying the remuneration payable to him.
2. Proposal to summon, or prorogue Houses of the Legislature of the State or to dissolve the Legislative Assembly.
3. Proposal for the making or amending of rules regulating the recruitment and the condition of service of -
(a) persons appointed to the secretarial staff of the Assembly or the Council [Article 187 (3)];
(b) officers and servants of the High Court under Article 229, provisos to clauses (1) and (2); and
(c) persons appointed to the public service and posts in connection with the State 9Proviso to Article 309).
4. Addresses and messages of the Governor to the Houses of State Legislature.
5. Any proposal to recover or to waive recovery of the penalty due under Article 193.
6. The annual financial statements to be laid before the legislature and demands for supplementary, additional or excess grants.
7. Proposals for making lump sum allotments regarding any scheme, unless the proposal has been considered by the Cabinet in connection with the Budget or supplementary or additional demands. Also proposals for making assignments out of such lump sum allotment.
8.Proposals relating to rule to be made under Article 208, clause (3).
9.Proposals for the making or amending of rules under Article 234.
10. Proposals for the issue of a notification under Article 237.
11. Any proposals any action for the dismissals, removal or suspension of Member of the Public Service Commission.
12. Proposals for making or amending regulations under Article 318 or under the proviso to clause (3) of Article 320.
13. Report of he Public Service Commission on its work [Article 323 (3) and any action proposed to be taken with reference thereto.
14. Proposals for legislation including the issue of Ordinance under Article 213.
15. Cases in which the attitude of the Government to any non-official resolution or a Bill in the Legislature to be determined.
16. Proposals for the imposition of a new tax or any change in the method of assessment or the pitch of any existing tax or land revenue or irrigation rates or for the raising of loans on the security of revenues of the State or for giving of a guarantee by the State Government.
17.Proposals involving the alienation, either temporary or permanent, or of sale, grant or lease of Government property exceeding Rs.1,00,000 in value, or the abandonment or reduction of revenue or writing off of losses, exceeding that amount, except when such alienation, sale, grant or lease of Government property -
(i) is in accordance with the rules or a general scheme already approved by the Cabinet, or
(ii) is made with the concurrence of Finance Department and the Minister-in-charge of the department concerned, in favour of the Uttar Pradesh Avas Evam Vikas Parishad established under Section - 3 of the U. P. Avas Evam Vikas Parishad Adhiniyam, 1965, or any Development Authority constituted under Section-4 of the U. P. Urban Planning and Development Act, 1973, or any public undertaking owned or controlled by the State Government.
18. The annual audit review of the finances of the State and he report of the Public Accounts Committee.
19. Proposals involving any important change of policy or practice.
20. Proposed circulars embodying important changes in the administrative system of the State.
21. Proposals involving any important alteration in he conditions of service of the members of any State Service or in the method of recruitment to a service or post to which appointment is made by the Government.
22. Reports of the Commissions of Inquiry appointed by the Government on its own initiative or in pursuance of a resolution passed by the State Legislature.
23. Proposals for appointments or any action inconsistent with the recommendation of the Public Service Commission.
24. Cases required by the Chief Minister to be brought before the Cabinet.
25. Proposals relating to :-
(i) creation of new corporations or companies wholly owned by the State Government or by a Public Sector undertaking;
(ii) Participation by the State Government or a Public Sector undertaking in providing share capital to a new or any existing corporation or company other than the proposals:-
(a) to acquire shares from the public in private sector organisations in which Government have a share or an interest; or
(b) relating to Uttar Pradesh Financial Corporation (UPFC), Pradeshiya Industrial and Investment Corporation of U. P. (PICUP), Uttar Pradesh State Industrial Development Corporation (UPSIDC), Uttar Pradesh Electronics Corporation (UPLC) and Uttar Pradesh Hill Electronics Corporation involving capital investment not exceeding fifty lac rupees, where prior approval of the Board of Directors of the Corporation or Company concerned has been obtained.
(iii) winding up, amalgamation or such other major scheme of structural re-organisation of public sector undertakings except in pursuance of a decision already taken by the Cabinet; and
(iv) increase in the capital cost estimates of State-owned public corporations, companies, enterprises and projects, where such increase is more than 20 per cent in the original cost estimates already approved by the Cabinet.
26. Proposals relating to :-
(i) (deleted);
(ii) the re-employment of Government servants where the pay (including pension and or pensionary equivalent of retirement benefits) proposed to be fixed exceeds Rs.2,000 per month, except in the following cases, namely :-
(a) proposals for re-employment of High Court and Supreme Court Judges, where the pay (including pension and pensionary equivalent of retirement benefits) proposed to be fixed does not exceed the pay last drawn; and
(b) re-employment of Government servants in State-owned public corporations, companies and enterprises where the salary of the officer is proposed to be fixed on the basis of the scale of the post less pension and/or pensionary equivalent or retirement benefits.
27. Cases involving financial implication on which the Finance Minister desire a decision of the Cabinet.
28. Cases in which a Minister desires a decision or direction of the Cabinet in a matter of importance on a subject assigned to his charge.
29. Cases in which a difference of opinion arises between two or more Minister and a Cabinet decision is desired.
30. Proposals to vary or reverse a decision previously taken by the Cabinet.
31. Proposals which Adversely affect the operation of the policy laid down by the Central Government.
32. Any other cases which the Governor or the Chief Minister may by general or special order require to be brought before the Cabinet.
THE SECOND SCHEDULE (Rule 8) Cases to be submitted to the Chief Minister and/or the Governor
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Serial Nature of cases Authority to whom No. To be submitted
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1. Proposal for the grant of pardons, reprieves The Chief Minister and respites or remissions of punishment or the Governor for the suspension, remission or commutation of a sentence in pursuance of Article 161 of the Constitution or Sections 432 and 433 of the Code of Criminal Procedure 1973 except cases of suspension or remission of sentence for a period of not exceeding two months at a time and one year in the aggregate.
2. Appointment and resignation of the Chief Minister The Governor and other Ministers of the State.
3. Appointment and resignation of the Advocate The Governor General.
4. Recommendations for introduction or considerations The Governor of a Bill or amendment or any motion of demand for grants.
5. Fixation of date for Presentation of Annual Financial The Governor Statement before Legislative Assembly.
6. Consideration of and assent to Bills passed by The Governor Houses of Legislature and promulgation of Ordinance.
7. Cases raising questions of policy and cases of The Chief Minister administrative importance.
8. Cases which affect or are likely to affect the The Chief Minister peace and tranquility of the State.
9. Cases which affect or are likely to affect the The Chief Minister interests of scheduled castes and scheduled Tribes.
10. Cases which affect the relations of the State The Chief Minister Government with the Government of India, any and the Governor other State Government, the Supreme Court or High Court.
11. Proposals for the appointment of Additional, The Chief Minister Ad-hoc and Permanent Judges and Chief Justice and the Governor of the High Court.
12. Constitution of an Advisory Board under Article 22(4) The Chief Minister
(a) for the detention of persons without trial.
13. Excluding the gazetted officers of class II, The Chief Minister proposals For the dismissal, removal, reduction in rank, suspension or compulsory retirement of any gazetted officer belonging to a State Service or of higher status.
14. Proposals for the appointment confirmation The Chief Minister (wherever applicable) and posting (whether applicable) of the following officers:
(a) Secretaries, Special Secretaries and Joint Secretaries of Department of Government.
(b) Heads of Departments, Members of the Board of Revenue and Commissioners including those holding charge as such in stop gap arrangement.
(c) Special Offices (e.g. Food Commissioner, Planning Officer etc.)
(d) District Judges.
(e) Additional and Deputy Inspectors General of police.
(f) Deputy Commissioners or Collectors, Additional Commissioners and Deputy Development Commissioners.
(g) Superintendent of Police.
14A. Creation of posts carrying pay scales, The Chief Minister the maximum of which exceeds Rs. 2,500 per month, after clearance being given by the Finance Minister. 15. Proposals to nominate Members of the The Chief Minister Legislative Council under Article 171(3)(e). 16. Proposal for the provision of representation The Chief Minister to the Anglo-Indian Community (Article 333). and the Governor. 17. Any communication from the Election Commission The Governor specially with reference to its requirements as to staff and action proposed to be taken thereon. 18. Any proposals for the institution of a The Chief Minister prosecution by Government against the advice tendered by the Law Department. 19. Any departure from these Rules which The Chief Minister comes to the notice of the Chief Secretary of the Secretary of any Department." 20. Cases pertaining to the Governors The Chief Minister personal establishment and Government and the Governor House matters. 21. Cases in which it is proposed to pay out of The Chief Minister the Consolidated Fund any damage or costs incurred by public servants in connection with legal proceedings instituted against them in respect of acts purported to have been done by them in their official capacity. 22. Proposals for the appointment of Chairman and The Chief Minister Members, of the State Public Service Commission. and the Governor 23. Appointment, resignation and removal of Chairman The Chief Minister and members of any other statutory Commissions, and important ad-hoc Commissions and members thereof. 24. Cases relating to summoning and prorogation The Chief Minister of Houses of the Legislature, dissolution of the Legislative Assembly, nomination to the Legislative Council, fixing of dates of elections to the Legislature and other connected matters. 25. Cases relating to the appointment of Secretary, The Chief Minister Deputy Secretary and Under Secretary to either House of the Legislature or to posts common to both Houses. 26. Any other matter which the Chief Minister may The Chief Minister from time to time, by general or special order, specify. 27. Any matter which the Governor requires to be The Chief Minister considered by the Cabinet, being a matter on which a decision has been taken by a Minister but which has not been considered by the Cabinet. 28. Such other cases involving questions of policy The Governor or of administrative importance as the Chief Minister might consider necessary to bring to the notice of Governor or the Governor may call for.
Rules 10 of the U.P. Rules of Business, 1975 prescribes the responsibility of Departmental Secretaries. The said Rule reads as under :
"10. Responsibility of Departmental Secretaries. - In each department, the Secretary (which term includes a Special Secretary or Joint Secretary, if any, in independent charge) shall be the administrative head thereof, and shall be responsible for the proper transaction of business and the careful observance of these rules in that department and if he considers that there has been material departure from them he shall personally bring the matter to the notice of the Minister-in-charge and Chief Secretary, the Principal Secretary/ Secretary, Chief Minister will be responsible. "
A perusal of Rule 3 of the Rules of Business, 1975 dealing with the disposal of business provides that all business allotted to a department under the Business of Uttar Pradesh (Allocation) Rules, 1975 shall be disposed of by or under the general or special direction of the Minister-in-charge. The Business of Uttar Pradesh (Allocation) Rules, 1975 reads as under :
"1.(1) These rules may be called the Business of Uttar Pradesh (Allocation) Rules, 1975.
(2) They shall come into force at once.
2.(1) The business of the government shall be transacted in the sections or departments of the Uttar Pradesh Secretariat as may be specified by general or special direction of Governor, issued from time to to time, in that behalf.
Provided that until further orders, the orders relating to allocation in force immediately before the commencement of these rules shall continue in force.
(2) In addition to the subjects specifically allocated or deemed to be allocated to under sub-rule (1), all sections or departments of the Uttar Pradesh Secretariat shall to issue orders under any of the following laws, in so far as the subject is concerned to them and subject to general directions of the Chief Secretary.
(a) the Defence of India Act and rules for the time being in force;
(b) any law for the time being in force for the maintenance of essential services or essential supplies,
(c) the Essential Commodities Act for the time being in force;
(d) any law relating to land acquisition for the time being in force,
(e) sanction for prosecution for any offence relating to the subject allocated to the section or department.
3.(1) Except as provided in sub-rule (2), the Governor shall, on the advice of the Minister, allot among the Ministers, the business of the Government by assigning more departments to the charge of a Minister:
Provided that nothing in this rule shall prevent the assigning of one department to of more than one Minister.
(2) The Chief Minister may from time to time by order allocate a Deputy Minister and may assign business to such Deputy Minister.
4. Each department of the Secretariat shall consist of the Secretaries of the Government. Who shall be official head of that Department and of such other ... and servants subordinate to him as the State Government may determine :
Provided that -
(a) more than one department may be placed in charge of the same Secretary and
(b) the work of a department may be divided between two or more Secretaries."
Sub-rule (e) of Rule 2 of the U.P. (Allocation) Rules provides that sanction for prosecution of any offence relating to subject shall be dealt with by the Section or Department to which it is allocated. Vide notification no. 3144/20-E-1-2002-603(47)/90TC-3 dated 4.12.2002, allotment of work to department and section of the Secretariat was reallocated. The matter relating to law and order and investigation by C.B.C.I.D. and sanction for prosecution in Commissionarate of Basti, Shravasti, Gorakhpur and Azamgarh was allocated to Home (Police) Anubhag-14 which falls under the Home Department. In view of Rule 3 of the Rules of Business, 1975 and U.P. (Allocation) Rules, 1975, sanction for prosecution in the instant case thus was required to be dealt with by the Home Department.
Now we proceed to consider as to whether provisions contained in Rules of Business, 1975 and U.P. (Allocation) Rules, 1975 and the procedure prescribed therein have been adhered to while considering the question of grant of sanction for prosecution or the order refusing to grant sanction for prosecution is de hors the provisions and the procedure prescribed in the aforesaid Rules.
The original record of the State Government pertaining to grant of sanction were produced before us and we went through it with the aid and assistance of Sri A.K. Sand, A.G.A.-I. A perusal of the record reveals that on 10.7.2015 the C.B.C.I.D. forwarded the Draft Final Report (DFR) to the Home Department for its approval and granting sanction for prosecution as required under the law along with a letter stating that since sanction for prosecution is allocated to Home (Police) Anubhag-14, the same may be referred to the said Anubhag.
The Special Secretary Home (Confidential) approving the note submitted the papers to the Chief Secretary, State of Uttar Pradesh for his approval. The Chief Secretary approved the note of Special Secretary Home (Confidential) on 17.7.2015 and all the relevant records were forwarded to the Special Secretary, Home Department Anubhag-14, which was received in his office on 20.7.2015. The Special Secretary, Home Department Anubhag-14 made a note on 29.12.2015 to seek legal opinion from the Law Department on the draft final report and accordingly papers were forwarded to the Law Department where it was received in the office of Special Secretary/Addl. L.R. on 11.7.2016. Additional L.R. after going through the record vide letter dated 12.7.2016 required the investigating officer to come for discussion along with entire record and case diary. In pursuance of the aforesaid noting of the Special Secretary, Law Department, a letter was sent to Superintendent of Police, C.B.C.I.D., Lucknow to direct the investigating officer of the case in question to appear before the Law Department along with case diary and other record on 27.7.2016. The investigating officer appeared before the Law Department but without any record as required by the Special Secretary, Law Department vide his note dated 12.7.2016 and hence, vide letter dated 02.08.2016 the Superintendent of Police, C.B.C.I.D, Lucknow was again directed to require the investigating officer of the case to appear along with complete case diary and other relevant record on 08.08.2016 in the Law Department. The investigating officer though appeared on 08.08.2016 with the case diary but did not bring the report of the Central Forensic Science Laboratory with regard to compact disc. The Special Secretary/Additional L.R. again put a note dated 09.09.2016 asking for the report, if any, of the Central Forensic Science Laboratory.
The aforesaid note of the Special Secretary/Additional L.R. was approved by the Principal Secretary Law and L.R. on 12.9.2016. A reminder letter dated 21.12.2016 was sent to the Superintendent of Police, C.B.C.I.D., Lucknow. After exchange of communications dated 3.1.2017 and 8.3.2017 between Superintendent of Police, C.B.C.I.D., Lucknow and the Home Department, finally report of the Central Forensic Science Laboratory was sent by the Superintendent of Police, C.B.C.I.D., Lucknow to the Home Department Anubhag-14 along with a letter dated 24.3.2017. After receiving the aforesaid communication along with forensic report, the matter was again sent to the Law Department for its opinion on 26.4.2017.
The Law Department after examining the entire record submitted a report dated 01.05.2017 stating that in the absence of the evidence there is no justification to grant sanction for prosecution. The Special Secretary Home agreeing with the opinion of the Law Department submitted a note dated 01.05.2017 for approval of the Principal Secretary Home. The Principal Secretary Home agreed with the opinion of the Law Department and accordingly accorded approval to the opinion on 03.05.2017 and order in this regard, which is impugned in the petition, was issued under the signature of the Joint Secretary (Police Anubhag-14).
From a perusal of the original records and movement of the files traced out by us from the record, we do not find any violation of the provisions of the Rules of Business, 1975 and U.P. (Allocation) Rules, 1975 in processing the present case.
Learned counsel for the petitioners vehemently contended that in accordance with entry no. 18 of Second Schedule, any proposal for institution of prosecution by the Government ought to have been sent for approval to the Chief Minister.
We are afraid the argument is totally misconceived inasmuch as under the Second Schedule (extracted hereinabove) the proposal for institution of a prosecution by the Government is required to be sent to the Chief Minister in case, if it is against the advice tendered by the Law Department.
In the case in hand, the Law Department tendered the opinion that sanction for prosecution is not liable to be granted for want of evidence and the opinion was accepted by the Principal Secretary of the Department namely, the Home Department which was entrusted to deal with the matter under the U.P. (Allocation) Rules, 1975 and thus, there was no reason or occasion to send the proposal for approval to the Chief Minster.
Learned counsel for the petitioner next submitted that in view of Rule 3 of the Rules of Business, 1975, the business allotted to a department is to be disposed of under the general or special order of the minister in-charge of the department and since there is no order of the minister in-charge of the department, approval accorded to the opinion of the Law Department not to grant sanction for prosecution by the Principal Secretary Home is without jurisdiction and in violation of the Rules of Business, 1975.
We are afraid the argument is again misconceived. Rule 3 of the Rules of Business, 1975 clearly provides that all business allotted, to a department under U.P. (Allocation) Rules, 1975 shall be disposed of by or under general or special direction of the minister in-charge. An order dated 16.8.2007 passed by the then Chief Minister who was also having portfolio of the Home Department and thus a Home Minister as well in exercise of power conferred by Rule 3 of the Rules of Business, 1975 passed an order dt.16.8.2007 in respect of disposal of work allotted to Home Department. The order reads as under :
" vkns'k mRrj izns'k dk;Z fu;ekoyh] 1975 ds fu;e&3 ds v/khu fuEufyf[kr vkns'k x`g foHkkx ds dk;Z fuLrkj.k gsrq tkjh fd;s tkrs gS%& ¼d½ i=kofy;kW tks fuLrkj.k gsrq eq>s izLrr dh tk;sxh%& 1- ,sls ekeys ftuesa uhfr lEcU/kh ekeys fufgr gksa vFkok ftUgsa eSa ns[kuk pkgwW] vFkok izeq[k lfpo fn[kkuk pkgsaA 2- ,sls izdj.k tgkW foHkkxh; ea=h@eq[;ea=h dks fdlh vf/kfu;e@fu;e@'kklukns'k ds varxZr vf/kd`r fd;k x;k gks o bl vf/kdkj ds izfrfu/kk;u dk lEcfU/kr vf/kfu;e@fu;e@'kklukns'kksa esa izkfo/kku u gksa] ls lEcfU/kr ekeysA ¼[k½ mi;Z;qDr ekeyksa dks NksM+dj 'ks"k lHkh ekeyksa ls lEcfU/kr i=kofy;kW izeq[k lfpo }kjk ;k muds izkf/kdkj ls vU; vf/kdkfj;ksa }kjk fuLrkfjr dh tk;saxhA ¼ek;korh½ eq[;ea=h ,oa x`g ea=h mRrj izns'k 'kklu x`g ¼iqfyl½ vuqHkkx&8 la[;k&2347,pbZ@N%& iq0 8&2007&391 ,pbZ@94 y[kuÅ% fnukad% 03 flrEcj 2007 "
A perusal of the aforesaid order goes to show that except matter specified in clause Ka(1) and Ka(2), all other matters shall be disposed of at the level of the Principal Secretary. The exceptions contained in clause Ka(1) and Ka(2) are matters relating to policy decision which the Home Minister may himself want to see or the Chief Secretary may like to place it before the Home Minister and where the concerned minister/Chief Minister has been authorized under some Act or Rule or Government Order, and there is no provision for delegation of the power.
The case in hand does not fall within the exception carved out by clause Ka(1) and Ka(2) but falls in clause Kha wherein the matter has to be dealt with either by the Principal Secretary of the department or by any other officer to whom the power is delegated by him. In the case in hand, the matter has been dealt with by the Principal Secretary Home and thus, there is no violation of the provisions of the Rules of Business, 1975 or U.P. (Allocation) Rules, 1975. The order for sanction of prosecution under Section 196 Cr.P.C. is not required to be authorized by the Governor or the Chief Minister of the State as is evident from the Rules of Business, 1975 The order impugned in this petition passed by the Principal Secretary communicated by the Special Secretary is strictly in conformity with the Rules of Business, 1975 and U.P. (Allocation) Rules, 1975. From a perusal of the original record, it is evident that at no point of time after completion of the investigation, the record was ever sent to the office of the Chief Minister of the State. The matter remained with the Home Department Anubhag-14 and the impugned order was passed by the Principal Secretary Home after obtaining the opinion of the Law Department. We have not been able to find anything in the record to show that the Chief Minister of the State was involved at any stage of the proceedings right from the date of receipt of the D.F.R. by the Home Department Anubhag-14 of the State Government till passing of the order.
Learned counsel for the petitioner next submitted that impugned order passed by Special Secretary is rendered illegal inasmuch under order dt.16.8.2007 passed by the Chief Minister/Home Minister, it was the Principal Secretary who was required to pass the impugned order and there is no delegation of the said power to any other officer of the department.
This argument also has no legs to stand. The State Government has framed Rules knows as U.P. Authentication (Orders and other Instruments) Rules, 1975, in exercise of power under clause (2) of Article 166 of the Constitution. The said Rules are reproduced hereunder :
" No.3/1/2/75-CX-I Dated Lucknow, June 28, 1975 In exercise of the powers conferred by clause (2) of Article 166 of the Constitution of India and in supersession of Government's notification no. C-134/XXV-CX, dated January 26, 1950, the Governor is pleased to make the following rules, namely :
1. Those rules may be called the Uttar Pradesh Authentication (Order and other Instruments) Rules, 1975.
2. All orders of instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of and by order of the Governor.
3. Every order or instrument of the Government of the State shall be signed by a Secretary, Special Secretary, Joint Secretary, Deputy Secretary or under Secretary to the government of Uttar Pradesh or by such other officer as may be specially empowered in that behalf by the Governor and such signature shall be deemed to be proper authentication of such order or instrument.
By order of the Governor B.D. SANWAL, Chief Secretary"
From a perusal of Rule 3, it is clear that every order can be signed by a Secretary, Special Secretary, Joint Secretary, Deputy Secretary or a under Secretary which shall be proper authentication of the orders.
We have gone through the original record and find that the proposal of Law Department has been duly approved by the Principal Secretary of the Home Department, which has been communicated under the signature of Special Secretary. In view of the provisions contained in Rule 3 of U.P. Authentication (Orders and other Instruments) Rules, 1975, we do not find any illegality therein and order cannot be held to be illegal or without jurisdiction on that Court.
It was next submitted by learned counsel for the petitioners that since after forensic examination of the DVD, the voice recorded therein was found to be similar to the specimen voice of the accused of Yogi Aadityanath sanction has wrongly been refused for want of evidence.
The forensic report of the DVD has been reproduced by us hereinabove. On examination of originality, editing and tampering, the DVD was found to be edited and tampered and not original. There is neither any reason nor any material to doubt the report dated 13.10.2014 submitted by the Expert of Central Forensic Science Laboratory, Central Bureau of Investigation New Delhi. Thus, even if, the voice recorded in the DVD supplied by the petitioners matched with the sample voice of the accused Yogi Aadityanath, since the DVD itself was found to be edited and tampered, similarity of the voice, in our opinion, is of no consequence.
Lastly, it was submitted by learned counsel for the petitioner that impugned order has been passed without considering the material and evidence on the basis whereof D.F.R. was submitted by the investigating agency as except for forensic report submitted by the C.B.I. Lab, there is no reference of any other material or evidence. It is also submitted that order is sans of reason to support the conclusion arrived at for refusal to grant sanction for prosecution.
It is well settled that grant of sanction is only an administrative function. Hon'ble Apex Court while considering the powers of judicial review of an administrative action in the case of U.P. Financial Corporation vs. M/s. Gem Cap (India) Pvt. Ltd., AIR 1993 SC 1435 in paragraph 11 has held as under :
"The obligation to act fairly on the apart of the administrative authorities was evolved to ensure the Rule of Law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the Quasi-Judicial Authorities are bound to observe. It is true that the distinction between a quasi- Judicial and the administrative action has become thin, as pointed out by this court as far back as 1970 in A.K. Kraipak v. Union of India AIR 1970 SC 150. Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi- judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well-known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have "a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to preferred" (Lord Diplock in Secretary of State for Education v. Tameside Metropolitan Borough Council - 1997 AC 1014 at 1064). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene."
In the case of Supt. of Police (CBI) vs. Deepak Chowdhary, 1995(6) SCC 225, Hon'ble Apex Court in paragraph 5 has held as under :
"5. ..... The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima-facie, the authority is required to reach the satisfaction that relevant facts would constitute the offence then either grant or refuse to grant sanction."
In the case of R.Sundararajan vs. State (2006) 12 SCC 749 while dealing with the validity of the sanction order, the Hon'ble Apex Court in paragraph 14 of the reports held as under :
"14. ......It may be mentioned that we cannot look into the adequacy or inadquacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction."
In State of Karnataka vs. Ameerjan, 2007 (11) SCC 273, the Hon'ble Apex Court in paragraph 7 has put as under :
"7. ............... an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should received the protection under the Act by refusing to accord sanction for his prosecution or not."
In the case of Kootha Perumal vs. State, (2011) 1 SCC 491, the Hon'ble Apex Court has held that the sanctioning authority when grants sanction on examination of the statement of the witnesses as also material on record, it can safely be concluded that the sanctioning authority has duly recorded its satisfaction and therefore, the sanction order is valid.
In the case of State of Maharashtra vs. Mahesh G. Jain, 2013 8 SCC 119, the Hon'ble Apex Court after analyzing the authorities with respect to grant/refusal of sanction has culled out the following principles :
"14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima-facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
It is not the function of the courts of law to substitute their wisdom and discretion and for that of the persons to whose judgement the matter in question is entrusted by the law.
From the principle laid down by the Hon'ble Apex Court, it can be safely concluded that grant of sanction is an administrative function and the validity of sanction depends upon the fact that entire material has been placed before the sanctioning authority and the same has been perused by the authority and there has been proper application of mind before recording the satisfaction whether sanction is liable to be granted or refused.
Keeping in view of the aforesaid principle, we now proceed to test whether the impugned order refusing to grant sanction by the sanctioning authority withstands the tests laid down.
From the perusal of the original record relating to sanction, we found that the entire case diary was forwarded by the investigating agency to the Home Department Anubhag-14, which in turn forwarded the entire material to the Law Department. The Law Department examined the entire records and found that forensic report of the compact disc forwarded to CBI Lab was not available and hence, called for it. The Law Department submitted its opinion only after considering the entire material on record including the report from the CBI Lab. Again entire record was forwarded back to the Home Department Anubhag-14 where after examination of the record, a report was submitted for accepting the opinion of the Law Department.
Once the perusal of the record reveals that all the materials collected by the investigating agency during the course of investigation which were available in the case diary were placed before the sanctioning authority and its satisfaction was arrived upon perusal of the entire material, it cannot be said that there was no objective materials to justify the subjective satisfaction recorded by the sanctioning authority. The order refusing sanction has been passed by the competent authority after due application of mind and the same is not lightly to be dealt with and flimsy technicalities cannot be allowed to sacrifice the sacrosanct and sacred Act for grant of sanction intended to provide safeguard against vexatious prosecution.
The aforesaid view taken by us finds support from the following observations of the Hon'ble Apex Court in the case of State of Bihar vs. P.P.Sharma & another, 1992 Supp.(1) SCC 222 :
"It is equally well settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and that the appropriate Government would apply their mind to those facts. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis involved. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Sri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. The question of giving an opportunity to the public servant at that stage as was contended for the respondents does not arise. Proper application of mind to the existence of prima faice evidence of the commission of the offence is only a precondition to grant or refuse to grant sanction. When the Government accorded sanction, Section 114(e) of the Evidence Act raises presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory presumption. Once that is done then it is the duty of the prosecution to produce necessary record to establish that after application of mind and consideratin thereof to the subject the grant or refusal to grant sanction was made by the appropriate authority. At any time before the court takes cognizance of the offence the order of sanction could be made. It is settled law that issuance of the process to the accused to appear before the court is sine qua non of taking cognizance of the offence. The emphasis of Section 197(1) or other similar provisions that "no court shall take cognizance of such offence except with the previous sanction" posits that before taking cognizance of the offence alleged, there must be before the court the prior sanction given by the competent authority. Therefore, at any time before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is entitled to produce the order of sanction. Filing of charge-sheet before the court without sanction per se is not illegal, nor a condition precedent. A perusal of the sanction order clearly indicates that the Government appears to have applied its mind to the facts placed before it and considered them and then granted sanction. No evidence has been placed before us to come to a different conclusion."
The same view was again reiterated by Hon'ble Apex Court in the case of Kootha Perumal (Supra). Their Lordships quoted the observation made in this regard in an earlier judgement in the case of Jaswant Singh vs. State of Punjab, AIR 1958 SC 128 with approval in following words :
"Undoubtedly, in the aforesaid judgment in Jaswant Singh,, this Court observed as follows :
4. The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness [Basdeo Agarwala v. King Emperor,(1945) 7 FCR 93]. The object of the provision for sanctions is that the authority giving the sanciton should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. In Gokulchand Dwarkadas Morarka v. R. (1947-48) 75 IA 30 the Judicial Committee of the Privy Council also took a similar view when it observed :
'...... In Their Lordships' view, to comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction.'' The scope of judicial review of an administrative order has been explained by Lord Denning in the case of Healey v. Minister of Health, (1955) 1 QB 221, in the following words :
"Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other time it says nothing about it. In all these cases the Courts will not themselves take the place of the of whom Parliament has entrusted the decision. The Courts will not themselves embark on a rehearing of the matter."
In the case of Padfield v. Minister of Agriculture, Fisheries and Food, 1968 AC 997, it was further observed by Lord Denning that if the decision making body fails to take into account matters which it ought to take into account the court will interfere.
Professor Wade in his book on Administrative Law has observed as under:
"The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The Court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended."
In view of aforesaid facts and discussions, we do not find any procedural error either in the conduct of the investigation or in the decision making process of refusal to grant sanction or any other illegality in the order which may require any interference by this Court while exercising its extra-ordinary power under Article 226 of the Constitution of India.
Writ petition must fail and accordingly stands dismissed.
However, in the facts and circumstances, we do not make any order as to costs.
Before parting we must put on record our appreciation for able assistance provided by Sri Manish Goyal, learned Additional Advocate General and Sri A.K.Sand, learned A.G.A.-I in going through the voluminous case diary and the original record of the State Government.
Dt.22.02.2018 nd.