Allahabad High Court
Ram Kishore Singh vs State Of U.P. And Anr. on 11 January, 2016
Author: Bharat Bhushan
Bench: Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved. Case :- CRIMINAL REVISION No. - 2078 of 2000 Revisionist :- Ram Kishore Singh Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- R.K. Awasthi,R.K. Jain,Swati Agrawal Counsel for Opposite Party :- A.G.A.,Hem Pratap Singh,Rahul Chaturvedi,V.K. Upadhyaya Hon'ble Bharat Bhushan,J.
1. This Criminal revision is directed against the common judgment and order dated 9.6.2000 passed by learned Sessions Judge, Varanasi in Criminal Revision No. 145 of 2000 (Prof. Onkar Singh Vs State) and Criminal Revision No. 146 of 2000 (Prof. Onkar Singh and another Vs State), whereby both the criminal revisions were allowed by setting aside the order dated 19.5.2000 passed by the learned Chief Judicial Magistrate, Varanasi in Criminal Case No. 5178 of 1998 (State Vs Prof Onkar Singh and another (CBCID, UP), arising out of Case Crime No. 23 of 1997, under Sections 302, 201/34 IPC, P.S. Lanka (CBCID), Varanasi by which the learned Magistrate, refused to drop the proceedings against the accused persons on account of Section 197 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) and Section 16 (D) of the Benaras Hindu University Act, 1915 (in short B.H.U. Act).
2. It appears that during relevant period Benaras Hindu University (in short B.H.U.) was holding forthcoming election for students union on 24.2.1997. There were preliminary reports indicating that there may be wide spread turbulence during election. On account of this rumpus, District Administration was on high alert. An emergent meeting was convened in the Vice Chancellor Lodge, BHU on 19.2.1997 which was attended by almost all senior District Administrative officials and Police Officials. Respondent no. 2 Prof. Onkar Singh, the then Chief Proctor of B.H.U. also attended this meeting. Pursuant to the decision taken in the meeting, Prof Onkar Singh, his Security Guard respondent no. 3 namely Mahngu Ram, Addl. City Magistrate Badal Chatterjee, S.P. City Ashutosh Pandey and other police officials went around the University Campus on 20.2.1997.
3. It is alleged that on the said date there was wide spread violence in the campus on account of violent agitations unleashed by section of students. On 20.2.1997 there was wide spread violence, brick batting, hurling of country made bombs, use of firearm weapons etc. in the BHU campus. Reign of terror had been unleashed by a section of students. There was large scale turmoil in the University Campus. Some students started damaging the property and there was danger to the human lives also. One Police Officer Jai Prakash Mishra had infact received injuries in his eyes. Prof. Onkar Singh was having his licensed rifle with him which was being carried by his security Guard, respondent no.3. It is further alleged that during the incident one Jai Prakash Singh, Circle Officer, P.S. Bhelupur snatched the rifle from the security Guard and fired upon the mob of students agitating at Birla Hostel, B.H.U. causing injuries to one Manoranjan Singh on non vital parts of body who later on succumbed to his injuries on account of septicemia. Thereafter, the FIR was lodged and the matter was finally investigated by the CBCID, UP and the charge sheet was filed against Prof Onkar Singh, respondent no. 2 and Mahangu Ram respondent no. 3 under Sections 302, 201/34 IPC. Record also reveals that respondent no. 3 Mahangu Ram has died by now.
4. The said charge sheet was challenged by accused respondents by filing the Misc Application U/s 482 No. 2862 of 1998 before this Court for quashing of the criminal proceedings. The accused respondents no. 2 & 3 claimed that no specific allegations had been levelled against them. Admittedly, firearm was discharged by Circle Officer of Police and that no overt act has been attributed to either the respondent no. 2 or respondent no. 3 and further no action was taken against any police personnel including Sri Jai Prakash Singh, the then Circle Officer, P.S. Bhelupur, who had infact opened fire upon the mob of students. The respondents no. 2 & 3 also claimed that Section 16 (D) of the BHU Act also provides them protection from prosecution. This court after considering the objections raised by respondents no. 2 & 3 disposed of the said application under Section 482 Cr.P.C. by directing the learned Chief Judicial Magistrate, Varanasi to consider and decide the objection raised by the accused persons within one month from the date of filing of the objection and both the accused were permitted to appear through counsel. The order of this court dated 10.8.1998 is reproduced here under:-
"Heard.
Perused the grounds of moving the application under Section 482 Cr.P.C.. it is stated that even if the allegations are taken on its prima facie value, the applicants will get protection under Section 16 D of the Benaras Hindu University Act as also under Section 197 Cr.P.C. for being a public servant and officers/officials of the BHU. The learned AGA submits that this could be decided by the trial court, if such protection was available to the applicants.
Reference was made to certain decisions of the supreme court as reported in 1996 JIC 562 and 1981 (supplementary) SCC page 12 to say that if at all firing was resorted to twice for the purpose of stopping the counter firing by the miscreants in which the officials were actually injured, the Chief Proctor had the duty to maintain discipline within the University premises.
The application stands disposed of with a direction upon the CJM, Varanasi to consider the objection which is to be raised within 15 days from today before him. The Magistrate will look to the materials before him to find out prima facie if these protections were available to the applicants on the basis of the materials on record. He will record an order within one month from the date of such objection. Till such decision is taken, the applicants are to be permitted to appear through counsel and their personal attendance may not be insisted upon. It will be open for the applicants to take other legal and factual objections even beyond the present grounds taken in the present application."
5. Pursuant to the aforesaid directions, objections were filed by the accused respondents no. 2 & 3 before the learned Chief Judicial Magistrate, Varanasi, who in turn considered those objections in the light of the aforesaid order of this court and after hearing both the parties the court below rejected the objections of the accused respondents by saying that the Chief Proctor Prof. Onkar Singh, respondent no. 2 and the Security Guard Mahangu Ram respondent no. 3 are not an employee of the State for the purpose of applicability of Section 197 Cr.P.C. The court below also held that the accused persons were not entitled to any protection of Section 16 (D) of the BHU Act and it has also been held that the case is exclusively triable by the court of Sessions and therefore he has to conduct only committal proceedings. He also held that he has no right to decide the maintainability of objection, applicability of Section 197 Cr.P.C. and Section 16 (D) of the BHU Act, though the court below had decided both the points in the light of the order passed by this Court vide its order dated 19.5.2000.
6. This order of the Magistrate was challenged by filing two Criminal Revisions being Criminal Revision Nos. 145 of 2000 and Criminal Revision No. 146 of 2000 before the Sessions Judge, Varanasi, who allowed both the revisions by a common order vide order dated 9.6.2000.
7. Sessions Judge, Varanasi held that the learned Chief Judicial Magistrate, Varanasi misdirected himself and came to a wrong conclusion. Revisional Court further held that if a particular act is illegal then this particular act would be illegal for all who are similarly situated. If immunity from the prosecution was extended to police personnel, it ought to have been extended to respondent nos. 2 & 3 also especially in the light of facts that no specific act resulting in the death of Manoranjan Singh (deceased) was attributed to them. They were merely present at the spot while the Circle Officer of P.S. Bhelupur is said to have opened fire at the frenzied mob of agitating students and if the Circle Officer could be given protection of Section 197 Cr.P.C. there was no reason to deny the same protection to respondent nos. 2 & 3 in the light of Section 16 (D) of the BHU Act. Revisional Court also held that the Magistrate had wrongly concluded that it was not possible for him to weigh the evidence and draw a conclusion as per provision of Section 209 Cr.P.C. The revisional court held that the Magistrate was not denuded of power to look into the question of protection especially in the light of order of this court dated 10.8.1998. The Court further held that a specific task was given to the Magistrate by judicial order of this court which ought to have been performed by him in the true spirit of the order of this Court. The revisionial court placing reliance upon the various judgments of Apex Court rendered in (1998) 5 SCC 749 Pepsi Food Limited and another Vs Special Judicial Magistrate and others; State of Haryana and others Vs Bhajan Lal and others, reported in 1992 Supp (1) SCC, 335 and Naranjan Singh Karan Singh Panjabi Advocate Vs Jitendra Bhimraj Bijja and others, AIR 1990 SC 1962 set aside the order of Chief Judicial Magistrate, Varanasi vide its order dated 9.6.2000 expressing surprise that the main assailant the Circle Officer of Police Jai Prakash Singh was absolved while people said to be merely standing there, have been made accused with the aid of Section 34 of the IPC. Revisional Court also sent back the record of the court below to the court of CJM, Varanasi for passing fresh order after considering all the material facts and circumstances in the light of the directions given by this Court. It is this order which is under challenge before this court on behalf of the complainant/revisionist Ram Kishore Singh.
8. Heard Ms Swati Agrawal, learned counsel for the revisionist, Sri Gopal Chaturvedi, learned Senior Advocate assisted by Sri Rahul Chaturvedi, learned counsel for the private respondent nos. 2 & 3 and learned AGA for the State.
9. Learned counsel for the revisionist has submitted that the revisional court has evaluated the evidence of prosecution at the initial stage which was not permissible. Revisional Court has apparently committed an error by weighing and scrutinizing the entire evidence threadbare which cannot be done at this stage.
10. Surprisingly, revisionist has claimed that no order of discharge could have been passed despite the fact that admittedly no discharge order has been passed by revisional court. Learned counsel for the revisionist has further claimed that protection under Section 197 Cr.P.C. and immunity from prosecution under Section 16(D) of the BHU Act is only available for the act done in good faith and that does not provide protection from prosecution of murder to the Chief Proctor of the University respondent no. 2. It is further contended that the accused respondent is not public servant within the meaning of Section 21 of the IPC, therefore, no prior sanction is required for prosecution.
11. On the other hand, learned Senior counsel appearing on behalf of respondent no. 2 has claimed that the authenticity of the present petition itself is highly doubtful inasmuch as the pairokar/deponent of the affidavit Sri Aflatoon Desai a notorious student leader was expelled from the University on 22.2.1991 relying upon the enquiry report given by the Committee comprising of Justice Kapoor on the action initiated by the then Chief Proctor Prof Onkar Singh, respondent no. 2. It is further submitted that the deponent has filed affidavit in support of the criminal revision projecting himself as Pairokar of revisionist so as to settle old score with Prof Onkar Singh, respondent no. 2 and further the deponent has no locus or information to agitate the present dispute on behalf of revisionist, who is permanent resident of District Siwan, Bihar. He has also submitted that the deponent has not filed any authority to show that he was authorized by revisionist to do pairavi in the instant case.
12. Learned counsel for the respondent no. 2 has also claimed that it is difficult now to understand a situation prevailing at that point of time. Entire campus was in flames and reign of terror had been unleashed by section of students. Decision to control the situation was taken in the meeting of executive officers, police officers and University Officials held in the Vice Chancellor Lodge on 19.2.1997. He further submits that in any case admittedly the rifle was being carried by the guard of Prof Onkar Singh namely Mahangu Ram and that his rifle was snatched by the Circle Officer, P.S. Bhelupur, District Varanasi, therefore, neither Prof. Onkar Singh, respondent no. 2 nor Mahangu Ram could have been prosecuted for the act of Jai Prakash Singh, the Circle Officer in total absence of any evidence of prior meetings of mind as contemplated under Section 34 of the IPC.
13. Learned Senior counsel appearing on behalf of respondent no. 2 has also pointed out that Prof. Onkar Singh, respondent no. 2 is also entitled to protection from prosecution in view of Section 16(D) of the BHU Act and Section 197 Cr.P.C. There is absolutely no evidence against the respondent no. 2 so far as the allegation of Section 302 IPC are concerned as the main assailant Jai Prakash Singh is not being prosecuted at all. It is further submitted that the B.H.U. is a Central Act which provides protection to his employees vide Section 16(D) of the Act, which reads as under:
Section 16D. Protection of action taken in good faith. No suit, prosecution or other legal proceeding shall lie against any officer, teacher or other employee of the University for anything which is in good faith done or intended to be done by him under this Act or the Statutes or the Ordinances or the Regulations.
14. It is evident that the plea of bar against the cognizance for want of sanction comes within the jurisdiction of the Court therefore can be raised at any stage of proceedings. Accused is not required to wait till framing of charges or cross examination of prosecution witnesses. Apex Court in Suresh Kumar Bheekam Chand Jain Vs Pandey Ajay Bhushan and others, (1981) 1 SCC 205 has held that requirement of sanction should not be confused with the scheme of trial under the Code of Criminal Procedure and the stage at which the accused against whom cognizance of offence has been taken by the learned Magistrate can lead evidence in support of his defence. Hon'ble Apex court has held thus:-
After giving our careful consideration to the facts and circumstances of the case and the respective submission of the learned counsel for the parties it appears to us that the question of requirement of sanction under Section 197 Criminal Procedure Code should not be confused with the scheme of trial under the Code of Criminal Procedure and the stage at which an accused against whom the cognizance of offence has been taken by the learned Magistrate can lead evidence in support of his defence. The question for consideration is when a Magistrate on the basis of a complaint issued process for appearance of the accused on being satisfied that there is sufficient ground for proceeding and the accused appears before the Magistrate and takes the plea that the offence alleged to have been committed by him was in the discharge of his official duty and further he was not removable from his office save by or with the sanction of the Government and consequently the court has no power to take cognizance except with the previous sanction of the Government as required under sub- section (1) of Section 197 of the Code of Criminal Procedure than the Magistrate would be required to decide the plea on the materials on record then existed or the accused can produce relevant material to establish the necessary ingredients for invoking Section 197(1) of the Code? According to Mr. Sibal, the Magistrate can examined the plea only with reference to the materials available on record and at that stage accused cannot have any right to produce any evidence to support his plea. According to the learned Attorney General, if the accused is debarred from producing the relevant materials to indicate that the acts complained of were in fact committed by the accused in discharge of his official duty and he can only produce the materials when the criminal proceeding reaches the stage under sub-section (4) of Section 246 in any warrant case instituted otherwise than on police report, then the very object and purpose of the provisions of Section 197 will get frustrated and the public servants will have to face irresponsible or vexatious proceeding even in respect of acts done by him in discharge of official duty. According to the learned Attorney General, therefore, though at that stage it may not be permissible for an accused to lead any oral evidence but there cannot be any bar for him to produce necessary documents including official records for the limited purpose of consideration as to whether Section 197 can be said to attracted and whether there exists a valid sanction.
15. It is pertinent to point out that committal proceedings under Section 209 Cr.P.C. are judicial proceedings and are enquiry within the meaning of Section 2 (g) Cr.P.C. Once the Magistrate has taken cognizance under Section 190 Cr.P.C. he conducts inquiry within the meaning of Section 2(g) Cr.P.C. till committal of the case to the Court of Sessions. During this period, Magistrate is entitled to see whether the case is exclusively triable by Court of Sessions or not. Committal Magistrate is not totally devoid of power to consider as to whether any case exclusively triable by the Court of Session is made out or not. For example, if the police mentions a wrong section in his report under Section 173(2) Cr.P.C., which is exclusively triable by court of Sessions then the Magistrate indeed has power and authority to correct the mistake. (State of U.P v Lakshmi Brahman and another 1983 SCC (Cri) 489). It is true that the Magistrate is not authorized to conduct a detailed inquiry or collect evidence for concluding that whether the case is triable by Session or not. But bare perusal of Section 209 Cr.P.C. indicates that the Magistrate is required to see whether the charge sheet discloses any offence exclusively triable by Court of Session. (Rajendra Kumar Jain v. State, 1980 SCC (Cri) 757).
16. It is therefore evident that conclusion of Magistrate that he had no power in this regard was not sustainable as held by learned Sessions Judge. The Magistrate has to reach judicial conclusion on the basis of the available material that case needs to be committed to the Court of Sessions. The words "it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions", employed in Section 209 Cr.P.C. do provide thin wedge in the door. In any case, learned Magistrate was asked by the order dated 10.8.1998 to consider the applicability of protection under Section 197 Cr.P.C. and Section 16 (D) of the BHU Act, therefore, the Magistrate ought to have performed this task in true spirit of that order.
17. The fact of the matter is that the Sessions Judge has only set aside the order of learned Magistrate but also directed the Magistrate to pass fresh order in the light of judgement of this court. Therefore, both the parties would have another opportunity to address the Magistrate. There was no need to rush to this Court against the order passed by learned Session Judge. Session Judge has not finally decided any thing. After giving his reasons for not upholding the order of Magistrate Sessions Judge has merely asked the learned Magistrate, Varanasi to decide the matter again. This, in my view, falls within the definition of interlocutory order.
18 Hon'ble Apex Court in Madanraj Vs Jalamchand Lodha and another, AIR 1960 SC 744 has held thus:-
"Then Mr. Mani contended that the High Court was in error in coming to the conclusion that prima facie the essential ingredients of Section 378 had been proved in this case. According to him, the jewels and other ornaments were kept in the box which remained with the complainant as a notional security and that it was always open to the appellant to take out the ornaments from the said box as he liked. He also suggested that the document (Ex. P-2) on which reliance was placed against him in the courts below had been executed by the appellant under coercion and undue influence. We do not think the appellant is entitled to raise these contentions at this stage in the present appeal. All that the High Court has done is to direct that the case should be tried afresh. In its very nature the order of remand passed by the High Court does not finally decide the points in the case and it is essentially of an interlocutory character. We do not propose to express any opinion On the observations made by the High Court because we are anxious that the further trial of the case should not be prejudiced one way or the other by whatever we may say. This Court does not generally interfere with interlocutory orders under Article 136, and we see no reason to depart from the usual practice in the present case. If the appellant wants to urge any grounds against the prosecution case either On law or on facts, it would be open to him to raise them at the trial before the court which will take up this case. We wish to express no opinion on the said points."
19. For all the reasons stated above, this court comes to the conclusion that the present Criminal Revision is not sustainable and the same deserves to be dismissed.
20. Accordingly, the Criminal Revision Case is dismissed. Learned Magistrate is directed to decide the matter within two months from the date of production of certified copy of this order.
Order Date :- 11.1.2016 RavindraKSingh