Allahabad High Court
Brajendra Kumar Gupta vs State Of U.P. Thru Secy. And 3 Others on 26 February, 2016
Bench: Bala Krishna Narayana, Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- CRIMINAL MISC. WRIT PETITION No. - 6880 of 2015 Petitioner :- Brajendra Kumar Gupta Respondent :- State Of U.P. Thru Secy. And 3 Others Counsel for Petitioner :- Amit Kumar Srivastava Counsel for Respondent :- Govt.Advocate,N.I.Jafri,Shwetashwa Agarwal Hon'ble Bala Krishna Narayana,J.
Hon'ble Naheed Ara Moonis,J.
(Delivered by Hon'ble Naheed Ara Moonis,J.) Heard Sri Amit Kumar Srivastava, learned counsel for the petitioner, Sri Imran Ullah, learned Additional Advocate General, learned counsel for CBI Sri N.I. Jafri, respondent no.3 as well as Sri Navin Sinha, Senior Advocate, assisted by Sri Shwetashwa Agarwal, learned counsel appearing on behalf of respondent no.4.
The instant petition has been filed with a prayer to issue writ, order or direction in the nature of Certiorari quashing the impugned order dated 21.11.2014 passed by Principal Secretary (Home), U.P. Government at Lucknow, respondent no.2 (hereinafter referred to as the Sanctioning Authority) whereby the sanction to prosecute the respondent no.4 Sri J. Ravindra Gaur, Senior Superintendent of Police, Aligarh has been refused in Case Crime No.571 of 2008 (Now Case Crime No.R.C.-053201050006), under Sections 302,201,120-B IPC, police station CBI/SCB, Lucknow.
Further prayed to issue writ, order or direction in the nature of Mandamus commanding the respondent nos.1 and 2 to accord sanction for the prosecution of the respondent no.4 in the above noted case.
It is necessary to bring on record that initially the writ petition was filed by Brijendra Kumar Gupta, who is the father of the victim in the aforesaid case. Brijendra Kumar Gupta died during the pendency of the writ petition and his son Shikhar Kumar Gupta has been substituted vide order dated 17.8.2015 as his legal heir and representative.
Two questions are involved in the instant writ petition. Firstly, as to whether the respondent no.2 has rightly refused to accord sanction for prosecution of respondent no.4 in the aforesaid Case Crime No.571 of 2008; and secondly as to whether the aforesaid order is amenable to the jurisdiction of this Court under Article 226 of the Constitution of India as the order impugned has been passed by the Administrative Authority.
Learned counsel appearing on behalf of the respondent no.4 has raised a preliminary objection with regard to the maintainability of the writ petition hence we think appropriate to answer first the latter question.
It has been argued by the learned Senior counsel for the respondent no.4 that the impugned order passed by the respondent no.2 is in the exercise of administrative function and the Hon'ble High Court cannot sit as an appellate authority over the decision of an order of Administrative Authority. The respondent no.3 has acted reasonably in refusing to accord sanction to prosecute the respondent no. 4 after taking into account the material facts and evidence. It has further been argued that all the accused police official had acted in self defence in which one person, namely, Pankaj Mishra @ Karan was injured and Mukul Gupta, the son of the petitioner, was killed on 30.6.2007 in a police encounter. There is ample evidence on record that the police official had acted in discharge of their official duty and any excessive act would not be a ground to prosecute the public servant. It was a case of cross firing from both sides. The impugned order has been passed by the respondent no.2 in the light of the order passed by this Hon'ble Court dated 27.5.2014 in Criminal Misc. Writ Petition No.6538 of 2014.
To lend cogency to his submission on the maintainability of the writ petition, the learned counsel has placed reliance upon the decisions of Hon'ble the Apex Court in U.P. Financial Corporation Vs. Gem Cap (India) Pvt. Ltd. and others reported in AIR 1993 Supreme Court 1435, Om Kumar And Ors vs Union Of India reported in AIR 2000 Supreme Court 3689 and Indian Railways Construction Company Ltd. Vs. Ajay Kumar reported in AIR 2003 Supreme Court 1843. It is contended that in respect of the administrative action taken by the authority it would not be appropriate to the writ court to sit as an appellate court, even if the authority has acted unfairly and unreasonably. It does not mean that High Court exercising its jurisdiction under Article 226 of the Constitution can sit as an appellate authority over the acts and deeds of the concerned authority and seek to correct them. Doctrine of fairness evolved in administrative law was not supposed to convert the writ courts into appellate court over administrative authorities. Learned counsel has laid emphasis on para 11 of the U.P. Financial Corporation case(Supra) wherein it has been observed as under:
"The obligation to act fairly on the part 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 and Ors. v. Union of India and Ors.: [1970]1SCR457 . 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 be preferred'' (Lord Diplock in Secretary of State for Education v. Tameside Metropolitan Borough Counsel 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. To quote the classic passage from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation at 229.
It is true the discretion must be exercised reasonably. Now what does than mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must riot be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound 40 to consider. He must exclude from his consideration matters which are irrelevant to what he was to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority."
It is further contended that in Om Kumar (Supra) the Hon'ble Apex Court has held that where administrative action is challenged as discriminatory under Article 14 of the Constitution of India, the principle of primary review is for the courts applying proportionality and where arbitrariness is attacked the principle of secondary review based only on Wednesbury principle would apply.
Learned counsel has emphasised on para 67 as held in the case of Om Kumar (Supra):
But where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Royappa (1974) 4 SCC 3 (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. In G.B. Mahajan v. Jalgaon Municipal Council (1991) 3 SCC 91 at p. 111 Venkatachaliah, J. (as he then was) pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules.
The learned counsel has further contended that in para 13 of Indian Railway Construction Company Ltd. (Supra) the Apex Court has dealt with scope for judicial review in the matter of exercise of powers by the disciplinary authority which is as follows:
"One of the points that falls for determination is the scope for judicial interference in matters of administrative decision. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It in tribe law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. See State of U. P. v. Renusagar Power Co., AIR 1988 SC 1737. At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work 'Judicial Review of Administrative Action' 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in such individual cases. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what has been authorised to do. It must act in good faith, must have regard to all relevant considerations arid must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not arbitrarily or capriciously. These several principles can be conveniently grouped in two main categories; (i) failure to exercise a discretion; and (ii) excess or abuse of discretionary power. The two classes are not, however, actually exclusive. Thus, discretion may be improperly fettered because irrelevant, considerations have been taken into account, and where an authority hands over its discretion to another body insets ultra vires."
Learned counsel appearing on behalf of the respondent no.2 submitted that in view of the aforesaid cases it is abundantly clear that the respondent no.2 while passing the order impugned has exercised his administrative power well within its jurisdiction with all fairness hence does not require any interference by the writ court.
We have given our anxious consideration to the submission advanced by the learned counsel appearing on behalf of the respondent no.4 with regard to the maintainability of the instant writ petition.
In our view, the legality or validity of the order granting or refusing sanction would be subject of review by the criminal courts. There is no dispute with regard to the well settled principles of law cited hereinabove but authority concerned is expected to act consciously and cautiously while taking such serious decisions and if the decision making body goes outside its power or acts with some ulterior object then the courts can only interfere.
From the perusal of the aforesaid decisions cited by the learned counsel for the respondent no.4 the back ground facts of the cases are entirely different. Indian Railway Construction Company (Supra) is a case where an employee who was temporary employed and was not confirmed even after his probation period, had assaulted a senior officer and along with others ransacked the office creating chaotic condition, and an order of dismissal was passed against the said employee without holding an inquiry. The Division Bench of High Court held that Article 311(2) was not attracted. However, it upheld the judgment of the learned Single Judge holding that on a limited judicial review, the order dispensing with inquiry was not sustainable.
In Om Kumar and others (Supra) certain officers of Delhi Development Authority who were connected with the land of the Delhi Development Authority allotted to one M/s Skipper Construction Company before receiving the auction amount in full and also in "conniving" at the construction, disciplinary enquiry was initiated against him and major punishment was imposed hence further proceeding was dropped by the Apex Court.
In U.P. Financial Corporation (Supra) in respect of loan sanctioned by U.P. Financial Corporation with certain terms and conditions and an agreement deed was executed and financial amount was released in favour of the respondents. Thereafter first respondent unit was declared a sick unit and did not make any repayment of loan as stipulated in the agreement and the Financial Corporation took step to take over the unit and issued notice for recovering the amount and the corporation took steps to take over the unit.
The question involved in the present case is entirely distinct and different. The person for whose prosecution the sanction has to be sought is not required to move any representation to the Competent Authority before it takes a decision in the matter. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. The sanctioning authority must apply its mind on such material facts and evidence collected during the investigation and should not pass order on "extraneous consideration" not germane for passing a statutory order. This Court is conscious of the fact and it is also well settled that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do so.
In the present case, the material placed by the complainant or the investigating agency was only required to be seen by the competent authority. The investigation of the case was taken over by the respondent no.3 on the direction of this Court and after investigation the charge sheet was submitted against co-accused police personnel against whom sanction was accorded by the sanctioning authority. In such circumstances the role played by the respondent no.4 cannot be deciphered exonerating him as if the sanctioning authority has assumed powers of trial judge. In such circumstances judicial review which is an integral part of basic structure of the Constitution to be exercised by Superior Court cannot be curtailed. Judicial review is directed not against the decision but is confined to the examination of the decision making process. Judicial review is a protection and not a weapon. It is not intended to take away from administrative authorities the powers and discretion vested in them by law. In Chief Constable of the North Wales Police v. Evans, [1982] 1 WLR 1155 refers to the merits-legality distinction in judicial review. Lord Hail- sham said:
"The purpose "of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court."
Lord Brightman observed:
" ..... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made ..... "
And held that it would be an error to think:
" ..... that the court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself."
The aforesaid observations were quoted with approval by their Lordships of Supreme Court in State of U.P. Vs. Dharmendra Prasad Singh, AIR 1989 SC 997 and while upholding that the judicial review is directed not against the decision, but is confined to the examination of the decision making process, it was held by the Supreme Court as under:-
"When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account, relevant factors or is so manifestly unreasonable that no reasonably authority entrusted with the power in question could reasonable have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors."
In view of the above conspectus the preliminary objection raised by the learned counsel appearing for the answering respondent no.4 has no force and is rejected.
Now in order to examine the validity of the order impugned it is necessary to discuss the background of the case.
The facts giving rise to the present petition are that petitioner Brajendra Kumar Gupta, the father of the victim Mukul Gupta moved an application under Section 156(3) Cr.P.C. on 16.5.2008 before the Court of Chief Judicial Magistrate, Bareilly against eight police officials including the respondent no.4, J. Ravindra Gaur, IPS, the then Additional Superintendent of Police, Bareilly with regard to brutal killing of his son Mukul Gupta stating therein that he is a retired Engineer and resident of Budaun. His youngest son Mukul Gupta, who was brilliant and educated person, having no criminal antecedents, was engaged in the business of medicines and was also doing a part time job in a reputed Firm at Bareilly as Computer Accountant. On account of his frequent visit to Bareilly he had taken a rented house at Mohalla Sanjay Nagar, Bareilly. The respondent no.4, J. Ravindra Gaur, IPS, the then Additional Superintendent of Police (Trainee), Bareilly wanted some certificate to please his senior police officers. He was eager for out of turn promotion. He hatched a conspiracy and set up a fake police encounter in association with his subordinate police officers and one informer. On 30.6.2007 at 9 am when his son Mukul Gupta was travelling on rickshaw he was intercepted by the Inspector Kotwali who robbed one lac rupee and his mobile phone and was handed over to the respondent no.4, J. Ravindra Gaur, the Additional Superintendent of Police, Bareilly. The respondent no.4 setting up a false and fake police encounter along with accompanying police officials killed his son and a false case was registered by the respondent no.4, J. Ravindra Gaur against Mukul Gupta under Sections 307 IPC and Section 25 of the Arms Act. It was further stated that in the false case set up by the respondent no.4 no police officials had sustained any injury nor the Tata Sumo was damaged and the son of the petitioner was done to death by firing on his head. There was serious lapses on the part of the police officials. Several complainants were made by the petitioner and he also tried to lodge the FIR against police officials but no report was lodged on the basis of the aforesaid application. The aforesaid application under Section 156(3) Cr.P.C. was rejected by the Chief Judicial Magistrate, Bareilly by an order dated 18.6.2008.
Aggrieved by the said order the petitioner filed a petition (bearing Criminal Misc. Application (u/S 482 Cr.P.C.) No.17364 of 2008) before this Court. This Court by order dated 14.7.2008 had quashed the order dated 18.6.2008 passed by the Chief Judicial Magistrate, Bareilly and the learned Magistrate was directed to pass a fresh order on the application moved by the petitioner under Section 156(3) Cr.P.C. Thereafter on 22.8.2008 the Chief Judicial Magistrate, Bareilly passed an order for registering the FIR against the named accused persons and directed that the offence be investigated. The FIR was ultimately registered against all the accused persons named in the FIR as Case Crime No.571 of 2008, under Sections 302,201,120-B IPC at police station Fatehganj West, District Bareilly on 11.9.2008.
The investigation was entrusted to the local police who submitted the final report against all accused persons. When the petitioner had approached to the higher authorities the case was transferred to SIS Budaun who again submitted final report in favour of the accused persons. The first informant-petitioner, on account of the unfair and impartial investigation by the SIS approached this Court by filing a writ petition (bearing Criminal Misc. Writ Petition No.20275 of 2008) for transferring the investigation of the case to some other investigating agency. By order dated 26.2.2010 this Court found substance in the argument of the learned counsel for the petitioner and arrived at conclusion that such material discloses a prima facie case calling for an investigation by the CBI hence directed to transfer the investigation to the Central Bureau of Investigation (hereinafter referred to as CBI), the respondent no.3.
The case was registered by the CBI, respondent no.3 on 17.6.2010 under Sections 302,201,120-B IPC as Case Crime No.RC 0532010S0006 at police station CBI/SCB, Lucknow. CBI conducted the investigation and submitted the charge sheet before the designated court. According to the inquiry report of the CBI, dated 24.12.2012 there was no firing from the side of the victim it was a case of fake encounter and the FIR lodged by the respondent no.4 J. Ravindra Gaur under Sections 307 IPC and 25 Arms Act was found to be false. The CBI forwarded the report to the respondent nos.1 and 2 for according sanction to prosecute the respondent no.4 and other police officials.
On 24.9.2013 the respondent no.2 relying upon the FIR lodged by the respondent no.4 and other materials had refused to accord sanction to prosecute the respondent no.4. The sanctioning authority has taken into account that the case was registered by the respondent no.4 as Case Crime No.545 of 2007, under Section 307 IPC against Pankaj Mishra @ Karan, Mukul Gupta, the deceased (son of the petitioner) and one unknown person at police station Fatehganj, West, District Bareilly alleging that respondent no.4 had received an information through an informer that miscreants travelling by a Tata Sumo were planning to loot a bank near Gate under C.B . Ganj, Police Station Bareilly. The respondent no.4 along with his gunner and driver chased the vehicle and intercepted the Tata Sumo near railway crossing and it was alleged that the person sitting inside the vehicle started firing upon him and his gunner and asked the person sitting in the vehicle to stop firing upon the police party then respondent no.4 directed the police officials to fire in self defence. His gunner had fired nine rounds from A.K. 47 riffle and in this firing Mukul Gupta, the son of the petitioner was killed and one miscreant was also injured while one person ran away and the driver of the said vehicle surrendered before the police. Countrymade weapons were recovered by the police. Live cartridges as well as empty cartridges were also recovered from one Pankaj Mishra @ Karan who was the friend of the deceased. Fire arm was also recovered from the possession of Mukul Gupta, the son of the petitioner. Live and empty cartridges were found inside the Tata Sumo besides two mobile phones, sim card, driving licence and pass book of Mukul Gupta along with Rs.1560/-. Hence a case under Section 25 Arms Act was registered as Case Crime No.546 of 2007 against Pankaj Mishra @ Karan and Case Crime No.547 of 2007 under Section 25 Arms Act against Mukul Gupta at police station Fatehganj, West, District Bareilly. The sanctioning authority found that charge sheet was submitted in the case against Pankaj Mishra @ Karan and Mukul Gupta under Section 307 IPC and thus the act of the respondent no.4 was done by him in discharge of his official duty and as such he had committed no offence and is entitled for the protection under Section 197 of the Code of Criminal Procedure.
The petitioner aggrieved by the order dated 24.9.2013 passed by the respondent no.2 refusing to accord sanction for prosecution of the respondent no.4 Sri J. Ravindra Gaur and other police officials filed a writ petition (bearing Criminal Misc. Writ Petition No.6538 of 2014). This Court after considering all the aforesaid background facts of the case and hearing the counsel for both the parties, allowed the writ petition by order dated 27.5.2014. The concluding part of the order is delineated hereinbelow:
"From the facts as borne out from the records of the present writ petition as well as from the report submitted by the C.B.I., it is apparently clear that the story as set up in the first information report lodged by J. Ravindra Gaur himself being Case Crime Nos. 545 of 2007, 546 of 2014 and 547 of 2014, Police Station Fatehganj West, District Bareilly enclosed as Annexure-6 to the present writ petition, has been found to be false after investigation by the C.B.I. In its report, C.B.I. has categorically recorded finding that there had been no firing from the side of the victims and that it was a case of fake encounter. The State Government has failed to appreciate that the firing by the police party upon the deceased had admittedly been opened on the asking of the respondent no.4 J. Ravindra Gaur, as was stated in the order impugned and in the first information report lodged by him. Further the recovery of illicit arms etc. near the dead body of the Mukul Gupta has also been found to be false. Thus, the fact disclosed in the first information report lodged by J. Ravindra Gaur, was a false story.
The State Government has failed to take note of the contents of the first information report lodged by J. Ravindra Gaur and the facts as per the report submitted by the C.B.I. in the matter of it being a case of fake encounter.
We may record that the human life has been lost as per the report of the C.B.I. due to fake encounter. In our opinion there is little or no reason for the details as disclosed in the report of the C.B.I. being ignored, while passing the order impugned.
The State Government has also failed to consider that if there was no firing from the side of the victims, where was the occasion for firing by the police party in alleged self-defence under orders of J. Ravindra Gaur.
We are of the considered opinion that the matter needs to be re-visited by the State Government in light of the contents of the first information report lodged by J. Ravindra Gaur being Case Crime Nos. 545 of 2007, 546 of 2014 and 547 of 2014 and the facts as disclosed in the report of the C.B.I. implicating J. Ravindra Gaur and other police officers in a case of fake encounter.
We may record that the law down by the Apex Court in the cases of State of Maharashtra Through Central Bureau of Investigation as well as in the case of Mansukhlal Vithaldas Chauhan (Supras) with regard to the sufficient material being not gone into by the High Court and further that there cannot be a direction to grant sanction for prosecution by the Court are well settled principles of law. But in the facts of the present case, we find that the State Government has not applied its mind to the relevant facts specifically the contents of the first information report lodged by J. Ravindra Gaur and the facts reported by the C.B.I. after investigation, which clearly implicates the police officers in a case of fake encounter.
Accordingly, the impugned order passed by the Secretary (Home), U.P. Government at Lucknow dated 24th September, 2013 cannot be legally sustained and hereby is quashed.
Writ petition is allowed with a cost of Rs. 50,000/- to be paid by the State to the petitioner for generating uncalled for litigation and for passing such illegal orders.
The State Government is directed to reconsider the issue of grant of sanction for prosecution in the facts of the present case after re-examining the report submitted by the C.B.I. in detail along with the contents of the first information reported lodged by J. Ravindra Gaur being Case Crime Nos. 545 of 2007, 546 of 2014 and 547 of 2014.
Let the necessary exercise may be completed within four weeks from the date a certified copy of this order is filed before respondent no.1."
Pursuant to the aforesaid order passed by this Court dated 27.5.2014 the matter again came up before the sanctioning authority. The sanctioning authority by the impugned order dated 21.11.2014 again passed the order refusing to accord sanction for prosecution of the respondent no.4 Sri J. Ravindra Gaur as envisaged under Section 197 of the Code of Criminal Procedure. The sanctioning authority found that the petitioner had set up a false case and the FIR lodged by the answering respondent no.4 Sri J. Ravindra Gaur and the testimony of Budh Sen who was the gate man of railway crossing in S.T. No.321 of 2009 arising out of case crime no.545 of 2007 amply shows that the firing was made in self defence which resulted into killing of Mukul Gupta. The respondent no.4 was unarmed and had not fired who was a trainee at the time of incident. Arms recovered from the deceased and his associates were in running condition which were used by them.
The learned counsel for the petitioner has vehemently argued that the order impugned whereby the sanctioning authority has refused to accord sanction to prosecute the respondent no.4 Sri J. Ravindra Gaur is discriminatory in nature as on the same set of evidence the sanction for prosecuting other police official has been accorded by the State Government. The respondent no.2 has exceeded its jurisdiction and considered the representation moved by the respondent no.4 and had also considered extraneous material by taking into account the statement of the witnesses recorded during trial in S.T. No.321 of 2009 when the trial is subjudice against other police officials. The sanctioning authority as if has passed the order of acquittal of the respondent no.4, which is not permissible and is in clear violation of the order passed by this Court dated 27.5.2014 as in the said order it was specifically directed that the matter needs to be re-visited by the State Government in the light of the contents of the FIR lodged by the respondent no.4 Sri J. Ravindra Gaur and the report of the CBI in respect of the FIR lodged against the respondent no.4 Sri J. Ravindra Gaur and other police officials in false and fake encounter case. The charge sheet has already been submitted in the court of Special Judicial Magistrate-I, CBI against other police officials on 20.8.2014 and in respect of the respondent no.4 it has been categorically mentioned that the respondent no.4 is not charge sheeted and has not been sent for trial for want of receiving sanction for prosecution against him as required under Section 197 of the Code of Criminal Procedure. In other words there are clinching material against the respondent no.4 for being prosecuted, yet the sanctioning authority has committed manifest error by ignoring the report submitted by the CBI. The sanctioning authority has refused to accord sanction by giving undue weightage to the statement of Vicky Sharma, Budh Sen and Pankaj Mishra @ Karan recorded under Section 164 Cr.P.C. before the Court in S.T. No.321 of 2009 that the person sitting in the Tata Sumo had started firing upon the police officials and the police officials in self defence had fired and, hence the report of the CBI is contrary to the facts and circumstances. It has wrongly been observed by the sanctioning authority that the respondent no.4 being a trainee unarmed and no firing was took place at his instance and other police officials had fired nine rounds on the direction of the respondent no.4 in self defence. All the aforesaid conclusion drawn by the sanctioning authority is absolutely based upon extraneous consideration,contrary to the report submitted by the CBI on 20.8.2014 whereby the respondent no.4 J. Ravindra Gaur, Constable Gauri Shankar Vishwakarma and Constable Jagvir Singh have been found guilty of the offence punishable under Sections 34/304-II, 12-B,193,218 IPC and rest of the police official under Sections 120-B,193,218 IPC. The sanction for prosecution under Section 197 of the Code of Criminal Procedure against other police officials has been granted by the State Government on 13.6.2014/11.8.2014. The role played by each of the police official is not material at the stage of considering issue of granting or refusing sanction. The respondent no.4 being a responsible officer himself indulged in breaking the norms of morality by indulging in criminal activities in connivance with his subordinates. It is no part of the duty of the public servant to indulge in malpractice by abusing position Prior sanction under Section 197 of the Code of Criminal Procedure is a shield to such a scrupulous public servant in protecting himself.
To advance submission the learned counsel for the petitioner has relied upon the following cases:
1. (2013)15 SCC 624; Urmila Devi Vs. Yudhvir Singh;
2. (2014)2 SCC 532; Manohar Lal Sharma Vs. Principal Secretary and others;
3. (2012) 3 SCC 64; Subramanian Swamy Vs. Manmohan Singh and another;
4. (2014) 13 SCC 70; Chandan Kumar Basu Vs. State of Bihar;
5. (2001) 43 ACC 516; P.K. Pradhan Vs. State of Sikkim
6. (2002) 45 ACC 788; Raj Kishore Roy Vs. Kamleshwar Pandey and another.
On the basis of the aforesaid decisions of Hon'ble the Apex Court as well as of this Court learned counsel for the petitioner submitted that there is no reasonable connection between the act done by the respondent no.4 with discharge of his official duty. The sanctioning authority has proceeded to place much reliance upon the material produced by the respondent no.4 that there is clinching evidence to show that there is reasonable connection between the act and in discharging the performance of official duty. The respondent no.2 in a summary way without considering the report of the CBI in correct perspective where it was categorically mentioned that there was no firing from inside the vehicle and there was continuous firing from the side of the police officials, refused to accord sanction. In such circumstances of the case the prosecution ought to have been given an opportunity to establish its case by cogent evidence and also an opportunity to be given to the defence to establish that he had been acting in discharge of his official duty which can only be judged during course of trial. The court is required to analyze the evidence produce at the stage of taking cognizance as to whether prima facie offence is made out or not. The court is conscious to protect the public servant from harassment by frivolous or vexatious prosecution. It is within the domain of the court when trial proceeds on merits to find out that the official duty and the act of the respondent no.4 were so inter-related that it was done by him though possibly in excess of the needs and requirement of situation. The protection given under Section 197 of the Code of Criminal Procedure is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty.
Per contra learned Additional Advocate General Sri Imran Ullah has refuted the contentions of the learned counsel for the petitioner and submitted that the respondent no.2 has exercised its power by ascertaining whether the respondent no.4 has committed the offence as alleged while acting or purporting to act in discharge of his official duty or not. The respondent no.2 has refused to grant sanction which was not an idle formality upon consideration of relevant facts and materials. The decision taken by the respondent no.2 cannot be said to be unwarranted or the respondent no.2 has exercised his power arbitrarily.
To prop up submissions the learned counsel for the respondents has placed reliance on the following decisions:
1. (2013) 8 SCC 119; State of Maharashtra Vs. Mahesh G. Jain;
2. (2008) 11 SCC 289; Raghunath Anant Goveilkar Vs. State of Maharashtra;
3. (2013) 80 ACC 526; Anupam Singh Vs. Central Bureau of Investigation;
4. Criminal Appeal No.722 of 2015 (D.T. Virupakshappa. Vs. C. Subhash)
5. (2012) 12 SCC 72; Om Prakash and others Vs. State of Jharkhan;
6. (2015) 3 SCC 123; Sanjay Sinh Ramrao Chavan Vs. Dattatray Gulab Rao Phalke and others.
It is further contended that answering respondent no.4 is an IPS Officer 2005 Batch with an unblemished service record and has earned recognition of his superior for the sincerity and dedication towards his duty. He belongs to the State of Telangana and after he completed his graduation and post graduation in the State of Andhra Pradesh (Now Telangana) he was selected in the Indian Police Services. He completed his training at Hyderabad and then was joined as Assistant Superintendent of Police (Trainee) Bareilly, U.P. as he was allotted U.P. Cadre.
The petitioner has made frivolous allegation against the answering respondent no.4 and other police officials by moving application under Section 156(3) Cr.P.C. on 16.5.2008 after a lapse of eleven months in respect of the alleged incident dated 30.6.2007 in which the son of the petitioner was killed. It has been falsely alleged that in that incident the answering respondent no.4 for getting out of turn promotion indulged in a fake encounter. The application under Section 156(3) of Cr.P.C. was initially rejected by the Chief Judicial Magistrate, Bareilly which itself shows the false and frivolous allegations made by the deceased's father. There are several clinching material which amply shows the nefarious design of the deceased Mukul Gupta who along with other persons had planned to commit loot in the bank and were proceeding for the same and were intercepted by the local police whereupon Mukul Gupta, Pankaj Mishra @ Karan and one another person shot fire upon the police party and in order to apprehend these assailants and to save their own life the police official fired whereby the petitioner's son Muku Gupta died and one miscreant Pankaj Gupta @ Karan received injury while one miscreant ran away. The driver of the vehicle was apprehended who narrated entire episode in respect of plan to commit robbery in the bank on the fateful day. The allegations made by the petitioner arraying ten police official including respondent no.4 with the allegation of murder of the son of the petitioner by fake police encounter was absolutely baseless and the respondent no.4 had acted in discharge of his duties as is evident from the First Information Report lodged by him against accused persons which was registered as Case Crime Nos.547 of 2007, 546 of 2007 and 545 of 2007. On account of death of Mukul Gupta, the son of the petitioner, the final report was submitted in Case Crime No.547 of 2007.
It is next contended that the order impugned passed by the respondent no.2 does not suffer from any discrimination. The State Government accorded the sanction for the prosecution against nine police official by order dated 13.6.2014. The case of the respondent no.2 is entirely different. The sanctioning authority on the basis of the material available on record, viz. the report of the CBI, the FIR lodged by the respondent no.4, statement of Vicky Sharma @ Dharam Pal, who was the driver of the Tata Sumo and the statement of Budh Sen (P.W-1) who was deputed as a gateman at the railway crossing only found that the respondent no.4 had acted in discharge of his official duty and hence rightly did not accord sanction for his prosecution. The CBI in its report had discarded the theory of self defence of police official as incorrect by stating there was no firing from inside the vehicle upon the police party. Even, if the prosecution case is taken to be true the answering respondent no.4 was at a distance of place of incident and had not fired upon the three assailants as he had only issued a direction to his gunner and on account of which the police party had to use excessive firing in the incident. There is no error or any irregularity in refusing to accord sanction to prosecute respondent no.4. The answering respondent no.2 has obeyed direction in the light of the observation made by this Court vide order dated 27.5.2014. Therefore, the petition lacks any merit and deserves to be dismissed.
We have considered rival submission of the learned counsel for the parties at the Bar and have perused the entire material on record.
For invoking protection under Section 197 of the Code of Criminal Procedure, the acts of the accused complained of must be such that the same cannot be separated from the discharge of his official duty, but if there was no reasonable connection between the act and the performance of the duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. It is well settled from catena of decisions of Hon'ble the Apex Court that question of sanction under Section 197 of the Code can be raised at the time of the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and even after conviction as well. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of his official duty, the proceedings will have to be dropped. At the same time, it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial as held by the Apex Court in P.K. Pradhan (Supra).
Whether sanction is necessary or not has to be considered on the factual scenario. Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of the Corruption Act relating to sanction operate in different fields. In cases covered under the Act in respect of public servants, the sanction is of automatic nature and thus factual aspects are of little or no consequence. 'Conversely, in a case relating to section 197 of the Code, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus to the discharge of duties. This position is not so in case of the sanction for prosecution of a public servant under Section 19 of the Act.
The contention of the learned counsel for the respondents that the respondent no.4 had not abused his position as a public servant and he has discharged his duty while performing his official duty these facts are required to be established which can be done at the trial. During the course of trial, the court below shall examine the question afresh and as such any observation with regard to plea of self defence can only be raised during trial. We refrain ourselves to consider the merits and demerits of the case and the matter should be left open for the trial judge. It is also relevant that question of sanction must be read in reference to the complaint or FIR against an accused person and not with reference to the documents produced by the accused who has set up a plea of self defence. All the acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of performance of official duty which cannot be camouflaged to commit a crime. It would be open to the accused at the appropriate stage during trial to place the material on record for showing what his duty was and also that the acts complained of were so inter-related and connected with the official duty, so as to attract the protection of Section 197 of the Code. As per the investigation made by the CBI it is revealed that the accused police personnel did not act in self defence and had used excessive force/police firing which resulted in the killing of Mukul Gupta, the son of the petitioner and caused fire arm injury to Pankaj Mishra @ Karan and there was no firing from inside side of the Tata Sumo vehicle the police official were in a position to apprehend the deceased without resorting to excessive firing, the firing took place from a very close range and in the presence of the respondent no.4 and on his direction several firing was made by the police official and no one had sustained any injury from the side of the police official and story of self defence was set up only to mislead the investigation only with intent to save from legal punishment, the FIR was lodged by the respondent no.4. The CBI concluded in its report that the respondent no.4 is liable for sharing common intention to commit criminal act by causing culpable homicide not amounting to murder by hatching a criminal conspiracy and framing incorrect record, which constitute the offence against him punishable under Sections 34/304-II, 120-B,193 and 218 IPC and the offence punishable under Sections 120-B,193,218 IPC against the other police officials.
When once the aforesaid offence is found to have been made out against public servant by the CBI the sanctioning authority has acted beyond its jurisdiction to record a finding of pre-trial acquittal against the respondent no.4 and granted sanction to other police personnels.
In the above conspectus the order refusing to grant sanction attract judicial review by the superior courts as observed by Hon'ble Apex Court that the duty to decide whether the limits have been transgressed has been placed on the judiciary.
In the case of Raj Kishor Roy (Supra) a similar case like the present one came for consideration before the Supreme Court. In short the facts of the case are that 1st Respondent being a police officer had brought illegal weapon and cartridges and falsely shown them to have been recovered from the accused and his brother. The learned Magistrate having found prima facie case issued summons against him. The police official filed a Criminal Misc. Application in the High Court for quashing order of the Magistrate inter-alia on the ground that sanction under Section 197 of the Code had not been obtained. The High Court held that even if the facts narrated in the complaint are taken to be true, the case would fall within the purview of Section 197 of the Code and without sanctioning of the appropriate authority the police officer could not be prosecuted. The matter was then carried to the Supreme Court. Upon hearing Hon'ble Apex Court reversed the order of the High Court and directed the judicial Magistrate to proceed with the case in accordance with law.
The relevant observation of Hon'ble the Apex Court in para 11 of the aforesaid judgment is extracted herein under:
"The question whether these acts were committed and/or whether 1st Respondent acted in discharge of his duties could not have been decided in this summary fashion. This is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in the official course of his duty. The question whether the 1st Respondent acted in the course of performance of duties and/or whether the defence is pretended or fanciful can only be examined during the course of trial. In our view, in this case the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of trial."
In view of the aforesaid authoritative pronouncement of the Supreme Court at the risk of repetition so far other accused persons are concerned the charge sheet has already been filed against them by the respondent no.3 and the State Government has also accorded sanction. There is no legal impediment for the court to proceed with the case if cognizance has been taken against them. It is well settled that the cognizance is always taken of the offence and not of the offender by the concerned court and the question whether in the case in hand sanction is necessary to prosecute the respondent no.4 should be left to be decided by the court itself at the appropriate stage.
Thus in view of the above the order impugned dated 21.11.2014 passed by Principal Secretary (Home), U.P. Government at Lucknow, the respondent no.2, is hereby quashed. The writ petition is hereby allowed.
We clarify that the court concerned will proceed on its own merit in accordance with law without being influenced by any observation made hereinabove as we have considered the facts of the case only to decide this writ petition.
Order Date :- 26.2.2016 Mt/