Delhi District Court
Cbi vs Bal Krishan & Ors. on 6 September, 2017
IN THE COURT OF SHRI RAKESH TEWARI,
DISTRICT & SESSIONS JUDGE (EAST), SPECIAL JUDGE (CBI)
KARKARDOOMA COURTS: DELHI
CBI No. 23/16
RC No. 4(S)/2003//CBI/SCR1/N. Delhi
U/S 302/364/120B IPC
CBI Versus Bal Krishan & Ors.
Date of institution : 11.07.2008
Date of order reserved : 26.08.2017
Date of Decision : 06.09.2017
ORDER
1. The case of the prosecution in brief is that, on 17.10.2002,
an FIR bearing No. 592/2002 was registered at PS Najafgarh for
the offence under Section 186/353/307 IPC read with Section
25/27 of Arms Act, on the complaint filed by SubInspector Bal
Krishan (accused herein), who was posted at Anti Auto Theft
Squad, South West District, New Delhi.
2. The allegations contained in the FIR were that SI Bal
Krishan received a secret information regarding the movement of
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a notorious criminal Vivek @ Vicky who remained involved in as
many as seventeen cases of heinous nature. On the basis of this
information a trap was laid with the permission of superior
officers and that on 16.10.2002 when the Maruti car bearing No.
DL 8 CD 5284, in which the accused Vivek @ Vicky and his gang
members were travelling, was intercepted in the area of Jharoda
Kalan, Najafgarh, Delhi and the inmates of the car opened the fire
towards the police party. The police team in which all the accused
persons (herein) were the members also fired in self defence. Due
to this cross firing, two inmates of the car namely, Mandeep S/o
Shri Dayanand, Vivek @ Vicky S/o Shri Prem Raj sustained
injury, who were declared dead in R.T.R.M. Hospital,
Jaffarpurkalan, Delhi. Two other inmates of the car, namely,
Krishan Gulia and Sandeep Malik were apprehended from the
spot. As these two persons were alongwith their two other
associates who died in the Hospital obstructed and assaulted the
public servant to deter them in discharge of their official duty as
well as they also attempted to commit murder of these police
officials by firing towards them, the said FIR under the relevant
provisions of law was registered.
3. On 18.11.2002, the wife of deceased accused Mandeep S/o
Dayanand, namely, Smt. Sonia filed a writ petition No. 1375/2003
before the Hon'ble High Court of Delhi. On 05.03.2003, Hon'ble
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High Court of Delhi passed the directions for conducting of
further investigation by CBI.
4. Prior to 05.03.2003, Delhi police after concluding the
investigation in case FIR No.592/2002 filed the charge sheet on
which ld. MM took the cognizance. The matter was committed to
the court of Sessions and vide order dated 28.02.2003, court of ld.
Addl. Sessions Judge was pleased to frame the charge against
accused Krishan Gulia and Sandeep Malik for the offence under
Section 186/353/307/34 IPC. This order attained the finality
because it was not challenged before any superior forum.
However, vide order dated 05.03.2003 passed in Crl. WP No.
1375/2002, Hon'ble High Court of Delhi stayed the trial of the
said case till the pendency of the investigation by the CBI.
5. CBI after the order dated 05.03.2003, registered a separate
RC on 03.04.2003 vide RC No. 4(S) 2003 SIU1 CBI/SCR1 New
Delhi and after completion of investigation CBI filed charge sheet
dated 20.12.2007 (hereinafter called 'CBI Case or instant case') for
the offences under Section 120B, 302, 364 IPC against all the
accused and accused Bal Krishan was also made liable for the
commission of offence under Section 218 of IPC and the CBI also
recommended the discharge of Sh. Krishan Gulia and Sh. Sandeep
Malik in FIR No.592/2002 (hereinafter called 'police case') lodged
with the police station Najafgarh on the complaint of accused Bal
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Krishan.
6. During the course of investigation, CBI came to the
conclusion that the offences alleged in this RC were done in
discharge of the official duty and accordingly they approached the
Hon'ble Lt. Governor of Delhi for grant of sanction under Section
197 Cr.P.C. against all the accused persons. The matter was
considered by the Hon'ble Lt. Governor of Delhi and vide order
dated 01.05.2007, sanction under Section 197 Cr.P.C. was
granted. Thereafter, CBI filed the charge sheet on which vide
order dated 11.01.2008 the cognizance was taken.
7. The chronology of various proceedings and the orders of
Hon'ble High Court of Delhi are as under :
i. Writ petition (Crl.) No. 703/2007 under Article 226 of the
Constitution of India read with Section 482 of Cr.P.C. 1973 was
filed in the Hon'ble High Court of Delhi for issuance of a Writ of
Mandamus or any other appropriate Writ, order or directions
seeking quashing of the impugned order of sanction, dated
01.05.2007 bearing No. F.7/64/2006/HP1/Estt./257 whereby the
sanction has been accorded for prosecution under Section 197 of
Cr.P.C. against the petitioners wherein vide order dated 5.11.2007,
the Hon'ble High Court of Delhi vacated the stay. Ld. Counsel for
the CBI stated that in his opinion the obtaining of sanction was not
necessary and the petitioner could have been prosecuted without
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even sanction. Vide order dated 8.5.2008, the Hon'ble High Court
of Delhi disposed of the Writ Petition (Criminal) No.703/2007
with the orders that the arguments can also be addressed before
the trial court by counsel for the CBI on the question of charge
taking the same plea as taken before this court. The Hon'ble High
Court further ordered that it is open to the counsel for the
petitioner as well as CBI to address arguments at the stage of
charges before the trial court on the question of sanction and the
plea raised in this petition can be raised before the trial court.
ii. In Criminal Revision Petition No. 173/11, the order of charges in
the CBI Case vide RC No. 4(S)2003 SIU1/CBI/SCR1 were
challenged whereby the Hon'ble High Court of Delhi vide order
dated 18.05.2011 ordered that the ld. Trial Court Judge will try to
dispose of the question of nonobtaining of sanction or its effect
within three weeks from the date of receipt of the order.
iii. The criminal M.C. No. 829/2011 titled CBI Vs. State & Director
of Prosecution, NCT of Delhi was filed before the Hon'ble High
Court of Delhi for setting aside the impugned orders dated
01.11.2010 and 14.12.2010 passed by Sh. P.S. Teji, the then ld.
District Judge (East)/ Special Judge CBI, Karkardooma Courts,
Delhi (as his Lordship then was) in FIR bearing No. 592/2002
(SC No. 06/09/03)/CBI Case No.RC. 4(S) 2003SIU1, New Delhi
and for further stay the trial of FIR No. 592/2002 PS Najafgarh, to
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discharge the accused and to pass a direction to the trial court to
proceed with the charge sheet submitted by the CBI, whereby the
Hon'ble High Court of Delhi vide order dated 18.05.2011 while
adjourning the case for 01.08.2011 has directed that till the next
date of hearing, Trial Court proceedings shall remain stayed. On
7.3.2017, Hon'ble High Court of Delhi directed the Trial Court to
dispose of the question of nonobtaining of Sanction or its effect.
8. Now, as per the said directions of Hon'ble High Court of
Delhi, this court is to apply its mind and form the opinion with
respect to the requirement of sanction and its effect on the order of
framing of charge.
9. I have heard Sh. M. Saraswat, ld. Public Prosecutor for the
CBI, ld. counsel for the complainant and Sh. Rajiv Mohan, ld.
counsel for accused Bal Krishan, Mukesh, Gajender, Harish and
Jag Mohan and Shri Vikas Arora, Adv. ld. counsel for accused
Pramod and perused the written submissions of both the parties.
10. So far so Section 197 Cr.P.C. is concerned, in the present
charge sheet filed by the CBI, admittedly, sanction to prosecute
the present accused, has already been filed on record but in the
Writ petition (Crl.) No.703/2007 before the Hon'ble High Court of
Delhi, the CBI somersaulted and took a stand that obtaining of
sanction was not necessary and the accused persons could have
been prosecuted even without sanction.
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11. I am conscious of the fact that in any case, any party can
take contradictory stands under the law, so long as both the stands
taken are not killing each other. For example, in a suit for
eviction, defendant may take the stand that either he was tenant or
he was the licensee because these two stands are not killing each
other but the defendant cannot take stands that either he was
tenant or he has become the owner by way of adverse possession.
12. In the present case, the CBI has taken two stands which are
killing each other because either the sanction to prosecute the
present case under Section 197 Cr.P.C. was required in the
circumstances of the case or no such sanction is required to
prosecute the present accused.
13. In the said circumstances, even if I hold that no sanction
was required under Section 197 Cr.P.C., it is the CBI, who wins in
this situation and if I hold that sanction to prosecute was required,
even then CBI wins because it has already placed on record the
sanction under Section 197 Cr.P.C. Thus, CBI has made best of
both the words. Hence, in my considered opinion, it is a futile
exercise to go into the question of sanction under Section 197
Cr.P.C. because there is no triable issues before me in the said
circumstances, to which I should address and answer.
14. By my said opinion, it does not mean that relevancy of
Section 197 Cr.P.C. is completely washed away because now the
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question arises as to whether the previous sanction of
Administrator under Section 140 of Delhi Police Act was required
or not.
15. To answer the question, comparison of both the sections
under Section 197 Cr.P.C. and under Section 140 of D.P. Act is
required and both the provisions are reproduced as follows :
"197. Prosecution of Judges and public servants - (1)
When any person who is or was a Judge or Magistrate or
a public servant not removable from his office save by or
with the sanction of the Government is accused of any
offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official
duty, no Court shall take cognizance of such offence
except with the previous sanction
(a) in the case of a person who is employed or, as
the case may be, was at the time of commission of the
alleged offence employed, in connection with the affairs
of the Union, of the Central Government.
(b) in the case of a person who is employed or, as
the case may be, was at the time of commission of the
alleged offence employed, in connection with the affairs
of a State, of the State Government.
(Provided that where the alleged offence was committed
by a person referred to in clause (b) during the period
while a Proclamation issued under clause (1) of Article
356 of the Constitution was in force in a State, clause (b)
will apply as if for the expression "State Government"
occurring therein, the expression "Central Government"
were substituted.
(Explanation For the removal of doubts it is hereby
declared that no sanction shall be required in case of a
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public servant accused of any offence alleged to have
been committed under Section 166A, Section 166B,
Section 354, Section 354A, Section 354B, Section 354C,
Section 354D, Section 370, Section 375, Section 376,
Section 376A, Section 376C, Section 376D or Section
509 of the Indian Penal Code (45 of 1860).
(2). No Court shall take cognizance of any offence
alleged to have been committed by any member of the
Armed Forces of the Union while acting or purporting to
act in the discharge of his official duty, except with the
previous sanction of the Central Government.
(3). The State Government may, by notification,
direct that the provisions of subSection (2) shall apply to
such class or category of the members of the Forces
charged with the maintenance of public order as may be
specified therein, wherever they may be serving, and
thereupon the provisions of that subSection will apply as
if for the expression "Central Government" occurring
therein, the expression "State Government" were
substituted.
(3A). Notwithstanding anything contained in sub
Section (3), no court shall take cognizance of any
offence, alleged to have been committed by any member
of the Forces charged with the maintenance of public
order in a State while acting or purporting to act in the
discharge of his official duty during the period while a
Proclamation issued under clause (1) of article 356 of
the Constitution was in force therein, except with the
previous sanction of the Central Government.
(3B). Notwithstanding anything to the contrary
contained in this Code or any other law, it is hereby
declared that any sanction accorded by the State
Government or any cognizance taken by a Court upon
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such sanction, during the period commencing on the 20th
day of August, 1991 and ending with the date
immediately preceding the date on which the Code of
Criminal Procedure (Amendment) Act, 1991, receives the
assent of the President, with respect to an offence alleged
to have been committed during the period while a
Proclamation issued under clause (1) of article 356 of
the Constitution was in force in the State, shall be invalid
and it shall be competent for the Central Government in
such matter to accord sanction and for the Court to take
cognizance thereon).
(4). The Central Government or the State
Government, as the case may be, may determine the
person by whom, the manner in which, and the offence or
offences for which, the prosecution of such Judge,
Magistrate or public servant is to be conducted, and may
specify the Court before which the trial is to be held."
"140. Bar to suits and prosecution - (1) In any case of
alleged offence by a police officer or other person, or of
a wrong alleged to have been done by such police officer
or other person, by any act done under colour of duty or
authorioty or in excess of any such duty or authority, or
wherein it shall appear to the court that the offence or
wrong if committed or done was of the character
aforesaid, the prosecution or suit shall not be entertained
and if entertained shall be dismissed if it is instituted,
more than three months after the date of the act
complained of;
Provided that any such prosecution against a police
officer or other person may be entertained by the court, if
instituted with the previous sanction of the Administrator,
within one year from the date of the offence.
(2). In case of an intended suit on account of such a
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wrong as aforesaid, the person intending to sue shall
give to the alleged wrong doer not less than one month's
notice of the intended suit with sufficient description of
the wrong complained of, and if no such notice has been
given before the institution of the suit, it shall be
dismissed.
(3). The plaint shall set forth that a notice as
aforesaid has been served on the defendant and the date
of such service and shall state what tender or amends, if
any, has been made by the defendant and a copy of the
said notice shall be annexed to the plaint endorsed or
accompanied with a declaration by the plaintiff of the
time and manner of service thereof."
16. From the bare reading of the said two provisions with
regard to sanction to prosecute, it is clear that the language used in
both the said provisions is overlapping and these languages have
been used interchangeably in various judicial pronouncements by
the superior Courts. However, the expression used in Section 140
of Delhi Police Act such as "any act done under colour of duty or
authority" is certainly a wider expression and the expression used
in Section 197 Cr.P.C. "accused of any offence alleged to have
been committed by him while acting or purporting to act in the
discharge of his official duty" is an instance or example of colour
of duty. Because there may be still an act done under the "colour
of duty" though it may not be "in the official discharge of duty".
For example, a police official may collect donation for the welfare
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of the families of the police officials who died during the
performance of their duties. Such an act may not be "official
discharge of duty" but certainly it is "under the colour of duty".
The reference here can be given of a judgment of the Hon'ble
Supreme Court titled Prof. Sumer Chand Vs. UOI & ors. reported
as 1993 SC 2579. As such, any decision of the Hon'ble High
Courts or Hon'ble Supreme Court on the issue of Section 197
Cr.P.C. is equally applicable to the issue of sanction under Section
140 of D.P. Act.
17. Ld. Public Prosecutor of the CBI has taken the first
objection that Section 140 of D.P. Act has no application in the
facts and allegations involved in the case as the accused/ police
officials in the instant case were not performing any sort of
official duties and same is apparent from the facts established in
the investigation by the CBI. The ld. PP has taken me through the
contents of the present charge sheet and pointed out as to how SI
Bal Krishan created false record with regard to the departure and
arrival of the police team at Dhaula Kaun office from Najafgarh
area, laying of Nakabandi at Bahadurgarh Bus Stand from 6.00
p.m. to 7.30 p.m. when they spotted the deceased Mandeep,
Vivek, Kishan Gulia and Sandeep Malik in Maruti Car No.
DL8CD 5284 but the said story was falsified by the eye witnesses
of Dharam Vihar, Bahadurgarh, who stated that four persons were
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abducted by the present accused persons from the house in front
of Hanuman Properties, Bahadurgarh and the said version of Delhi
Police also falsified by their locations of the mobile phones in
their possession. The Ld. PP of the CBI pointed out that further
story of the police is falsified by the statement of Kishan Gulia
and Sandeep Malik, who narrated that Vivek and Mandeep were
killed and Ld. PP has argued that act of the accused persons in
first kidnapping four persons and killing two of them were not in
their official duty as the accused persons had not informed the
Haryana Police about their arrival in Bahadurgarh and further their
purpose of the visit and thus, accused persons cannot be said to be
discharging their official duty, nor acting or purporting to act in
the discharging of their colour of office duty in good faith and that
accused persons, out of their criminal conspiracy, prepared false
DD entries, forged KOT records and abducted four persons
without informing the local police and killed two of them in cold
blooded manner and the set of facts as mentioned above cannot be
said to be done in the discharge of official duty and act of killing
two persons can never be done under the umbrella of colour of
duty and as such, sanction under Section 140 of D.P. Act or
Section 197 Cr.PC is not required at all and the sanction under
Section 197 Cr.P.C from the Lt. Governor of Delhi was taken as
an abundant caution. In this regard, ld. PP of the CBI relied upon
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cases of the Hon'ble Supreme Court titled Satyavir Singh Rathi
Vs. State through CBI reported as (2011) 6 SCC 1, titled Paul
George Vs. State of Delhi reported as (2008) 4 SCC 185 and that
of Hon'ble High Court of Delhi titled CBI Vs. Dharampal Singh &
anr. reported as 2005 (84) DRJ 284 and again that of Hon'ble
Supreme Court of India titled CBI Vs. M. Shivamani being Crl.
Appeal No. 12611262 of 2017 decided on 01.08.2017.
18. It has been further argued by the ld. PP for the CBI that
limitation period for the prosecution of the accused vide Section
140 of D.P. Act does not apply to the present case as the offence
has been committed by the accused on 16.10.2002 and the further
investigation of the case was assigned to the CBI by the Hon'ble
High Court vide order dated 5.3.2003, after a lapse of three month
time period and that the CBI after the direction of High Court,
registered the present case and started investigation and on the
conclusion of the same, charge sheet was filed on 20.12.2007 and
as such, the limitation period of one year is also not applicable to
the present set of facts and that earliest period on which the CBI
comes to the conclusion that the offence under investigation has
been committed by the present accused persons could be the time
when the CBI applied for the sanction under Section 197 Cr.P.C.
on 23.9.2005, which is again the period beyond the period of
limitation as stipulated under Section 140 D.P. Act and thus, there
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was no occasion to apply for sanction u/s 140 D.P. Act and infact,
it was not so required.
19. It has been further argued by the ld. Public Prosecutor that
the investigation in the present case was assigned by the
Constitutional Court of Delhi and there are several examples
where the further investigation of the cases has been assigned by
the Hon'ble High Courts to the CBI after lapse of the limitation
period mentioned in the provisions of the D.P. Act and if the
application of Section 140 of D.P. Act is to be construed so
strictly, then the orders passed by the Hon'ble High Court of Delhi
for investigation of this case, beyond the period would lose its
significance and will be bad in law and in fact, it will preclude
even the Hon'ble Supreme Court and Hon'ble High Court to pass
orders for investigation beyond the period prescribed under
Section 140 of D.P. Act.
20. Taking the last contention of the orders of the Hon'ble
Superior Courts becoming bad in law, it is not available to the
CBI in the present case because once the order for further
investigation was directed by the Hon'ble High Court of Delhi in
Writ Petition No.1375/2002, there was no order of the Hon'ble
High Court of Delhi for registration of a fresh FIR in the case, as
has been done in the present case by the CBI nor it has been
directed that there is no need of obtaining a sanction under Section
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140 D.P. Act. Moreover, this is admitted fact on the record that
there were more proceedings between the parties before the
Hon'ble High Court of Delhi and admittedly in Writ Petition (Crl.)
No.703/2007, in Crl. Revision Petition No.173/2011 and in Crl.
MC No.829/2011, the same Constitutional Court, i.e. the Hon'ble
High Court of Delhi directed this court to decide the question of
sanction under Section 197 Cr.P.C. and Section 140 D.P. Act and
its effect on charge. Nothing has stopped the Hon'ble High Court
of Delhi in the said proceedings before it to hold that there was no
need of sanction for prosecution in the present case.
21. The other contention that order of the Hon'ble High Court of
Delhi in Writ Petition (Crl.) No. 1375/2002 itself amounts to grant
of sanction to prosecute the accused in the present case, which has
been tried to be supported by the judgment of Apex Court in the
case titled CBI Vs. M. Shivamani in Crl. Appeal No.1261
1262/2017, decided on 1.8.2017 wherein it was held as follows :
"While the bar against cognizance of a specified
offence is mandatory, the same 5 (2000) 1 SCC 278
has to be understood in the context of the purpose for
which such a bar is created. The bar is not intended to
take away remedy against a crime but only to protect
an innocent person against false or frivolous
proceedings by a private person. The expression the
public servant or his administrative superior cannot
exclude the High Court. It is clearly implicit in the
direction of the High Court quoted above that it was
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necessary in the interest of justice to take cognizance
of the offence in question. Direction of the High
Court is at par with the direction of an administrative
superior public servant to file a complaint in writing
in terms of the statutory requirement. The protection
intended by the Section against a private person filing
a frivolous complaint is taken care of when the High
Court finds that the matter was required to be gone
into in public interest. Such direction cannot be
rendered futile by invoking Section 195 to such a
situation. Once the High Court directs investigation
into a specified offence mentioned in Section 195, bar
under Section 195(1)(a) cannot be pressed into
service. The view taken by the High Court will
frustrate the object of law and cannot be sustained."
22. The ld. PP of the CBI has probably failed to appreciate the
said judgment of Hon'ble Supreme Court in Shivamani case
(supra), wherein the question was with regard to bar under Section
195(1)(a)(i) of Cr.P.C. because it was contended in that case as to
whether for the offence under Section 182 IPC, the complaint in
writing of the public servant concerned or of some other public
servant to whom he is administratively subordinate, was required
for taking of cognizance or not. It was in answer to this question
that the above narrated holding of Hon'ble Supreme Court in para
11 of the judgment was given. The view of the Hon'ble Supreme
Court is that the expression of the public servant of his
administrative superior cannot exclude the High Court and
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direction of the High Court is at par with the direction of an
administrative superior public servant to file a complaint in
writing in terms of statutory requirement, so that a private person
cannot file a frivolous complaint. But the requirement and the law
of Section 197 Cr.P.C. or Section 140 D.P. Act is to protect the
honest, innocent public servants including police officials from
frivolous litigations or prosecution against them. Thus, the said
judgment of the Hon'ble Supreme Court does not come to the help
of the CBI in the present case.
23. The contention that abduction of two persons and killing
them and thereafter fabricating the documents in order to give
colour of offence under Section 186, 353, 307 IPC, can never be
said to be an act in discharge of official duty or colour of duty of
the present accused, has been raised on behalf of the CBI.
24. The case of Satyavir Singh Rathi (supra) of the Hon'ble
Supreme Court was pressed into service by the ld. PP of the CBI
but he failed to appreciate that this was the case of mistaken
identity where the innocent businessmen were mistaken for the
criminal who was wanted by the Delhi police. The judgment of
Sankaran Moitra Versus Sadhna Dass & another reported as
(2006) 4 SCC 584 is a judgment passed by larger bench
comprising of three Hon'ble Judges of the Hon'ble Supreme Court
of India in the year 2006 whereas the judgment of Satyavir Singh
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Rathi case is passed by bench comprising of two Hon'ble Judges
of Hon'ble Supreme Court of India in the year 2011 and as such,
this court is bound to follow the pronouncement of Larger Bench
which is binding precedent. It is settled principle of law that if
there is conflict in the two judgments of the Hon'ble Supreme
Court, then the judgment rendered by the larger bench would be
the binding precedent. Moreover, the judgment in Sankaran
Moitra's case was not brought to the notice of the Hon'ble Bench
in Satyavir Singh Rathi's case.
25. On facts, the case of the applicants is distinguishable in as
much as the fact that the applicants were performing their official
duty was established during the police investigation of FIR
No.592/02 PS Najafgarh, Delhi, wherein after investigation
chargesheet under Section 307, 353, 186 IPC was filed,
cognizance was taken by the Ld. Magistrate and thereafter matter
was committed to the court of session for trial. After hearing the
parties on point of charge, ld. Sessions Judge was pleased to frame
the charges against the accused therein. Whereas in case of
Satyavir Singh Rathi there is no finding of any agency or court
that the accused were infact performing their official duty.
26. Even otherwise, in Satyavir Singh Rathi's case, the Division
Bench of Hon'ble Supreme Court has propounded that killing of a
person cannot be termed as an act done in "colour of official duty"
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(para 90). However, in the case of Sankaran Moitra's case, the full
bench of Hon'ble Supreme Court has taken a contrary view by
observing that where it was ample clear that the appellant and
other police officers had acted illegally, unlawfully and high
handedly and in the complaint it was stated by the widow of the
deceased that accused chased her husband and assaulted him by
causing several injuries, which resulted in his death and that apart,
eye witness has stated that the deceased was assaulted and beaten
by the accused/ police officers and that the deceased had not
indulged in any illegal activity and that he had not done any
unlawful act and that he has no weapon with him and that he was
distributing the food packets at the polling booth of a particular
political party.
27. It was held by Hon'ble Supreme Court in the said case that
prosecution of the said case was hit by the provision under Section
197 Cr.P.C., which cannot be launched without the contemplated
sanction and it is a condition precedent though the question as to
applicability of Section 197 may arise not necessarily at the
inception but even at a subsequent stage and request to postpone
the decision on the said question in the instant case, held, not
acceptable and that the complaint that deceased, a supporter of a
political party, was beaten to death by police personnel at the
instance of appellant police officer near a polling booth on
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election day and that appellant was on duty to prevent any breach
of law and maintain order on that day and that he had reached the
spot on receiving information regarding some disturbances at the
polling booth. It was further held by Hon'ble Supreme Court that
appellant committed the act in question during the course of
performance of his duty, and sanction under Section 197(1) was
necessary for his prosecution and that Hon'ble High Court's
judgment taking contrary view was set aside holding that High
Court's reasoning that killing of a person by use of excessive force
could never be performance of duty, is not proper and that its
further reasoning that if High Court were to interfere on the
ground of want of sanction, people will lose faith in the judicial
process, is also not acceptable. In the said judgment, Hon'ble
Supreme Court relied upon the previous judgment of the Hon'ble
Supreme Court in case titled Pukhraj Vs. State of Rajasthan
reported as (1973) 2 SCC 701, B. Saha Vs. M.S. Kochar reported
as (1979) 4 SCC 177, Bakshish Singh Brar Vs. Gurmej Kaur
reported as (1987) 4 SCC 663, Rakesh Kumar Mishra Vs. State of
Bihar reported as (2006) 1 SCC 557, Rizwan Ahmed Javed Shaikh
Vs. Jammal Patel reported as (2001) 5 SCC 7 and all the said
judgments were holding that even the excessive use of force or
illegal acts committed during the colour of office attract the
provision of Section 197 of Cr.P.C.
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28. Hon'ble Supreme Court has also discussed the aspects of
Section 140 D.P. Act in Satyavir Singh Rathi Asstt Commissioner
of Police & ors. Versus State through CBI 2011(6) SCC 1. While
dealing with provisions of Section 140 D.P. Act, Hon'ble Supreme
Court in para 82, 83 & 90 has held that the facts of the case
disclosed commission of the offence of murder and it cannot by
any stretch of imagination be claimed by anybody that a case of
murder would fall within the expression "colour of duty". We find
absolutely no connection with the acts of appellant and the
allegations against them. Section 140 D.P. Act would therefore
have absolutely no relevance in this case. The case of Satyavir
Singh Rathi as per this judgment was a case where two persons,
namely, Pradeep Goel and Harjeet Singh were killed in an
encounter by police on the basis of mistaken identity of one
Mohd. Yaseen, a hard core criminal. The conviction was upheld
because the act if killing these two persons was done on the basis
of mistaken identity and this fact of mistaken identity could not
establish by the accused persons. The present case is totally
different from Satyavir Singh Rathi's case because in the present
case the information which these police officials were having was
about the arrival of a notorious criminal Vivek @ Vicky and his
associates. When trap was laid the same persons Vivek @ Vicky
was found entering on 16.10.2002 at about 7.30 p.m. in the area of
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PS Najafgarh in a Maruti Car bearing No. DL8CD 5284 alongwith
his gang members. When his car was signaled to stop, the inmates
of the car opened fire towards the police party. The police team in
self defence and to prevent the escape of accused persons opened
fire towards the Maruti Car. Due to this fire arm shot, accused
Mandeep and Vivek @ Vicky succumbed to bullet injuries.
Hence, the principle laid down in Satyavir Singh Rathi's case is
not applicable to the present case.
29. Furthermore, in the case of Satyavir Singh Rathi case, the
incident occurred on 31.3.1997. The FIR with respect to death of
Pradeep Goel and Jagjeet Singh vide FIR No.453/97 was
registered on 01.04.1997 under Section 302/34 IPC at PS
Connaught Place, which was transferred to CBI by the orders of
Govt. on the same day. CBI after conducting an indepth
investigation filed the charge sheet in this case on 13.06.1997,
meaning thereby the prosecution was launched within three
months from the date of incidence. In these circumstances,
Section 140 D.P. Act could not be said to come into play because
of launching the prosecution within the period of three months and
as such, there is no requirement of any sanction. It is specifically
mentioned under Section 140 D.P. Act that the prosecution
beyond the period of three months but within one year can be
launched with the sanction from the Administrator of Delhi. The
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Act is silent for the launching the prosecution beyond the period
of one year. So, the law laid down in Satyavir Singh Rathi case
cannot be said to be applicable to the present case.
30. Similarly, in the case of Paul George (supra), the Hon'ble
Supreme Court held that jumping road divider and coming face on
the incoming traffic was the factor which has caused the accident
while the head constable was driving the vehicle, who had caused
the accident and was clearly not a matter within the colour of duty
because by jumping road divider can never be in the discharge of
duty or colour of duty but the facts of the said case are totally
different from the facts of the present case.
31. Ld. PP for the CBI, on the other hand, failed to explain the
query of this court that if killing of the said two persons is to be
taken as a fake counter, then why the accused persons in the
present case would spare two persons, namely, Kishan Gulia and
Sandeep Malik so that they may be readily available as witnesses
against them for the murder of other two persons, namely,
Mandeep, Vivek @ Vicky.
32. So far as fabricating the official record by accused SI Bal
Krishan is concerned, it was answered by the Hon'ble Supreme
Court of India in case titled Prof. Sumer Chand Vs. Union of India
& another reported as AIR 1993 SC 2579 (Supra) that :
"Having regard to the principles laid down in the
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aforementioned decisions of this court on provisions
contained in Section 161(1) of the Bombay Police Act,
1951, which are similar to those contained in Section
140(1) of the Act, we are of the view that the High
Court was right in holding that the present case falls
within the ambit of Section 140 of the Act and that
what is alleged against respondents no.3 & 4 by the
appellant in the plaint is that respondent No.4, who was incharge of Mayapuri police post had registered a false, vexatious and malacious report against the appellant, and respondent no.3, who was Station House Officer, PS Naraina, had filed the challan in the court against appellant and other accused on the basis of the said report. The facts in the present case are similar to those in Virupaxappa Veerappa Kadampur Vs. State of Mysore (supra) where the allegation was about the presentation of false panchnama and report of seizure of ganga. It was further held that the said action of the appellant in that case was held to be done under the colour of duty since it was the duty of police Head Constable to prepare a Panchanama and for that reason it was held that there was a nexus between the act complained and the statutory duty that the police Head Constable was to perform. Similarly, in the present case it was the duty of respondent No.4, being incharge of the police Post Mayapuri, to record the report and so also it was the duty of respondent no. 3 the SHO of PS Naraina to file the challan in the court. The acts complained thus had a reasonable connection and nexus with the duties attached to the offices held by respondent no.3 & 4. The acts complained of were, therefore, done under the colour of office of the said respondents and fell within the ambit of Section 140(1) CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 25 of 37 of the Act. It is further held that it is not disputed that if Section 140(1) is found applicable, the suit filed by the appellant, as against the respondents, was barred by limitation having been filed after the expiry of three months and it could not be entertained against them."
33. Thus, in view of the said judgment of Hon'ble Supreme Court in case Prof. Sumer Chand Case (supra), even if false documents were prepared by SI Bal Krishan, as alleged, it was certainly under the colour of duty.
34. The contention of ld. PP for the CBI that sanction under Section 197 Cr.P.C. was taken by way of "abundant caution", does not appeal to the common sense because there cannot be abundant caution against the statute. Legislature never waste its words. Every word of the Statue is to be given effect to. Either the statute, as per its command is to be followed or if it is not required, then the said command of the Statue may not be followed. Either CBI should have taken the stand that there was no sanction required for the prosecution of present accused or if it has come to the conclusion that sanction was required, it cannot be termed "by way of abundant caution". Hon'ble Supreme Court in the case titled General Officer Commanding Vs. CBI & another reported as AIR 2012 SC 1890 held in para 55 that Legislature has conferred "absolute power" on the Statutory authority to accord sanction or withheld the same and the court has no role in this CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 26 of 37 subject and in such circumstances, the court would not proceed without sanction of the competent statutory authority. It was further held that question as to whether any act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court.
35. In the recent decision, Hon'ble High Court in the case titled Manoj Pant Vs. State reported as 2015 I AD (Delhi) 598, with regard to sanction under Section 140 D.P. Act, it was held as under:
"The Delhi Police Act was enacted to amend and consolidate the law relating to the regulation of police in Union Territory of Delhi. It is axiomatic that it is a special enactment in respect of matters referred to therein and, therefore, the provisions contained in a special law must prevail over the provisions contained in general law like Cr.P.C., which generally applies to all the complaints, challans etc. Section 140 of D.P. Act, falling in the miscellaneous Chapter XI imposes certain restrictions and limitations with regard to institution of suits and prosecution against police officers in respect of the alleged offences or wrong acts by them. In my view, the DP Act being a special law, restrictions and limitations enumerated therein should apply to access falling within the ambit of Section 140 of D.P. Act."
36. The matter can be looked into from another aspect also.
CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 27 of 37After completion of the investigation, the CBI itself came to the conclusion that the incident which occurred on 16.10.2002 was the act done in discharge of official duty by these accused persons, who were the public servants and sent the matter to the Hon'ble Lt. Governor of Delhi, who after scrutinizing the file and upon asking of CBI, applied his mind and found the act done by these public servants in discharge of their official duties. Accordingly, the sanction was granted and as per Section 197 Cr.P.C., the court of ld. ACMM considered the aspect and after being satisfied that a proper sanction has been given by the competent authority, took the cognizance of the offence alleged in the charge sheet.
37. Section 197 Cr.P.C. nowhere creates an absolute bar on the prosecution of the public servants for the offences done in discharge of official duties but it gives a protection to the public servants that before launching the prosecution, the competent authority must consider as to whether it wants the prosecution of that public servant or not. In the present case, Hon'ble Lt. Governor of Delhi accepted the request of the CBI that in this case, the prosecution of these public servants are required and accordingly, he granted the sanction.
38. From the perusal of the record of the CBI case, it is evident that three different Forums decided the issue as to whether the offence was done in discharge of official duty i.e. the first was the CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 28 of 37 order passed by the ld. MM of taking cognizance and ld. ASJ who framed the charges in FIR No.592/2002 for the offences U/S 186, 353, 307/34 IPC. The said offences can only be committed against the public servants, who are in discharge of their official duties. Second Forum was CBI itself, which by forwarding the request to Hon'ble Lt. Governor of Delhi itself concluded that this is a case where the offence was done in discharge of official duty and forwarded the request to Hon'ble Lt. Governor of Delhi. Third Forum was authority of Lt. Governor of Delhi, who after applying the mind found that the act was done in discharge of official duty and granted the sanction.
39. When the ld. ASJ framed charges against the accused in FIR No.592/2002 i.e. the police case, which was a competent court and finding of that court is creating issue estoppel. Similarly, by the conduct of CBI in forwarding the request to Hon'ble Lt. Governor of Delhi for according sanction to prosecute and the act of the Hon'ble Lt. Governor of Delhi in granting the sanction also creates rule of estoppel against the CBI itself and now the CBI cannot be heard saying that no such sanction to prosecute the present accused is required.
40. Question arises as to whether doctrine of issue estoppel and res judicata apply to a criminal proceedings. This question came for consideration before the Full Bench of Hon'ble Supreme Court CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 29 of 37 in case titled Pritam Singh & another Vs. State of Punjab reported as AIR 1956 SC 415, wherein it was held that :
"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim of 'res judicata pro veritate accipitur' is no less applicable to the criminal than to civil proceedings. Thus, an acquittal of an accused in a trial under Section 19(f) Arms Act, tantamount to a finding that the prosecution had failed to establish the possession of certain revolver by the accused as alleged. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence U/S 19(f).That fact was found against the prosecution and could not be proved against the accused in the subsequent proceedings between the Crown and him, under a charge of murder. The evidence against him in the latter proceedings would have to be considered regardless of the evidence of recovery of the revolver from him."
41. Second time said question came before the Hon'ble Supreme Court in the case titled Piara Singh Vs. State of Punjab reported as AIR 1969 SC 961, wherein it was held that :
"The principle of issueestoppel is different from the principle of double jeopardy or autrefois acquit as embodied in Section 403 of the Cr.P.C. The principle of CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 30 of 37 issueestoppel is a different principle, viz. where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2) Cr.P.C. For issueestoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties."
42. Again this question came for consideration before Hon'ble Andhra Pradesh High Court in case titled D.R. Rao Vs. G. Somi Reddy & ors. reported as 1987 Crl. Law Journal 1629, wherein it was held that :
"The rule of issueestoppel can be taken advantage of in a situation when the finding in favour of the accused is arrived at on an appraisal of facts and circumstances on an identical issue in a former case. Whatever be the outcome in the prior case if the identical issue arises in both the cases the findings given in a prior case bars the adjudication of the same issue in a later case. The accused in whose favour the finding has been given in a former case can invoke rule of issue estoppel and the court is barred from considering the issue again. The rule of issue estoppel bears the pattern of res judicata under Section 11 Cr.P.C. Though res judicata all its ramifications may not apply but the essence of the CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 31 of 37 doctrine applies and when the Court is seized of the matter the finding in the issue cannot be reopened in a subsequent cause and the said finding is binding by operation of this doctrine. The operation of rule of issue estoppel is not linked with the outcome in the proceedings and the bar is confined to reagitate or adjudicate when a finding is already arrived on identical issue as distinct from autrefois acquit applicable to the interdiction of a trial in succession in respect of the same offence ending in acquittal,"
43. Following the said principles of rule of estoppel and res judicata, once my predecessor court of ld. ASJ framed the charges against the accused in the state case vide FIR No.592/2002 for the offences under Section 186, 353, 307/34 IPC and came to the conclusion that accused Kishan Gulia and Sandeep Malik in the said case obstructed the police officials (accused in the CBI case) in discharge of their public functions (Section 186 IPC), assaulted or used the criminal force to the said police officials in the execution of their duties as such public servants or with intent to prevent or deter the said persons from discharging their duties as such public servants (Section 353 IPC), and the said order of framing the charge had already attained finality since the same was not challenged by way of revision on behalf of said accused Kishan Gulia and Sandeep Malik, that finding is binding upon this court creating a rule of estoppel and same issue cannot be allowed CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 32 of 37 to be reagitated before this court between the same parties.
44. Similarly, the CBI is bound by rule of estoppel now and it cannot be allowed to retreat back from its earlier stand whereby the CBI itself came to the conclusion that the act by the present accused was done in the discharge of official duty and sanction to prosecute was required.
45. The law prescribes no limitation period for obtaining the sanction under Section 197 Cr.P.C. but the accused, the police officials in the present case are subject to the provisions of Delhi Police Act, 1978, which is a special law and as per well established rule of interpretation, which shall prevail over the general provisions of Cr.P.C.
46. Section 140 of DP Act creates a limitation by saying that for any act done under colour of duty or authority or in access of any such duty or authority, the prosecution without the sanction, can be launched only within the period of three months from the date of commission of the offence but an exception to this rule is that the prosecution within one year from the date of the commission of offence can be launched with the prior sanction of Hon'ble Lt. Governor of Delhi and the provisions of Delhi Police Act does not provide launching of prosecution beyond the period of one year and thus, the said period of limitation is absolute and provides for no condonation of its delay. The reference can be made of the case CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 33 of 37 of Hon'ble High Court of Delhi titled Rakesh Kumar Vs. State reported as 2009 Law Suit (Del) 1058, where the sanction was obtained after the period of limitation, it was held that in the facts and circumstances of the case and having regard to the provisions of Section 140 of the Delhi Police Act, taking into consideration that the mandatory requirement of sanction was not fulfilled, and also the fact that respondents had filed the sanction but beyond the period of limitation, hence, there exists no sanction in the eyes of law, accordingly, the petition deserves to be allowed. The Hon'ble High Court referred the case of Hon'ble Apex Court titled Manjula Sinha Vs. State of U.P. & ors., 2007 3 JCC 2054, wherein it was held by the Apex Court that if the court comes to the conclusion that continuance of proceedings would amount to an abuse of the process of the court and quashing all the proceedings would serve the ends of justice, the proceedings should not be continued.
47. In the present case, offence was allegedly committed on 16.10.2002 and the CBI registered the RC on 03.04.2003 which was the date within the period of one year and the CBI for the whole one year did not make any effort for getting sanction either U/S 197 Cr.P.C. or Section 140 D.P. Act. For the purposes of Section 140 D.P. Act, the period of limitation for institution of prosecution with the prior sanction of Hon'ble Lt. Governor of CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 34 of 37 Delhi, expired on 16.10.2003 which was beyond the period of limitation and any launching of prosecution after the period of limitation is not allowed under the law. The sanction under Section 197 Cr.P.C. which was first applied in the year 2007 and was granted on 1.5.2007 can never be termed as a sanction granted under Section 140 D.P. Act.
48. The expression "institution of prosecution" has to be understood in the context of scheme of the Act applicable in a particular case and so far as the criminal proceedings are concerned, "institution" does not mean filing, presenting or initiating the proceedings, rather it mean taking cognizance as per the provision contained in the Code of Criminal Procedure. The power of the State is performed by an executive authority authorised in this behalf in terms of the rule of executive business framed under Article 166 of the Constitution of India in so far as such a power has to be exercised in terms of Article 162 of Constitution of India. Reference can be given of para 24 of the judgment of the Hon'ble Apex Court in case titled General Officer Commanding Vs. CBI reported as AIR 2012 SC 1890. Thus, to say that if the application of Section 140 D.P. Act is to be construed so strictly, then it will preclude even the Hon'ble Supreme Court and Hon'ble High Court to pass order for investigation beyond the period prescribed under Section 140 D.P. Act or it will loose its CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 35 of 37 significance and will be bad in law, as is the contention raised by the CBI before this court, is groundless and hence rejected.
49. In view of my said discussion, I am of considered opinion that sanction under Section 140 D.P. Act was required in the present CBI case which has not been obtained at all and period of limitation for obtaining the same has expired long back.
50. Now, the question arises of nonobtaining of sanction under Section 140 D.P. Act and its effect on the charge. The Hon'ble Supreme Court in the case titled Anjani Kumar Vs. State of Bihar reported as AIR 2008 SC 1992 has held that in such a situation, the continuance of proceedings by the prosecution would amount to abuse of the process of law and as such, the criminal proceedings in the court of ld. Chief Judicial Magistrate, Begu Sarai in PS Case No.63 of 1993 are quashed. Similarly, Hon'ble High Court of Delhi in Crl. Misc. (M) No. 672 of 1995 and Crl. Misc No. 1003/ 1995 decided on 22.11.2000 titled Kiran Bedi Vs. NCT of Delhi & another has held that in the absence of any sanction under Section 140 D.P. Act, cognizance could not have been taken because of the bar created in that provision of law.
51. Hence, I am of considered opinion that in the present case filed by the CBI, the cognizance should not have been taken and the charge, as framed by ld. Predecessor, should not have been framed and the accused, the police officials are entitled to be CBI No. 23/16 CBI Vs Bal Krishan & ors. Page No. 36 of 37 discharged.
Copy of this order be given dasti to both the parties. Now to come up for outcome of the order of Hon'ble High Court of Delhi in Crl. M.C. No. 829/2011 and Crl. M.A. No. 4165/2011 on 27.9.2017.
Announced in open court
on 06.09.2017 (RAKESH TEWARI)
District & Sessions Judge (East)
Karkardooma Courts, Delhi
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