Delhi District Court
Rc2(S)/2002: "Cbi vs Si Vinay Tyagi & Ors." Date Of Order: ... on 24 May, 2012
RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI In the matter of: RC2(S)/2002 CBI, SICIV, New Delhi U/s 120 B IPC rs/w Section 218, 302, 201 IPC & Substantive Offences U/s 218, 302, 201 IPC r/w 34 IPC Central Bureau of Investigation V/s 1. SI Vinay Tyagi, S/o Shri Ramesh Chander Tyagi (The Then SubInspector, Special Staff, East District, Delhi Police) 2. SI Atul Tyagi, S/o Shri Ram Avtar Tyagi (The Then SubInspector, Special Staff, East District, Delhi Police) 3. Satinder Singh, S/o Shri Vijay Singh (The Then Head Constable, Special Staff, East District, Delhi Police) 4. Neeraj Kumar, S/o Shri Rajender Pal Kaushik (The Then Head Constable, Special Staff, East District, Delhi Police) Order on Cognizance ("Cognizance Refused") Page 1 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 5. Prem Pal Singh, S/o Shri Vijay Pal Singh (The Then Constable, Special Staff, East District, Delhi Police) 6. Raj Kumar, S/o Shri Fateh Singh (The Then Constable, Special Staff, East District, Delhi Police) 7. Hari Om, S/o Shri Dev Singh (The Then Constable, Barrig No.8, PS Preet Vihar, Delhi) 8. Naresh Pal, S/o Shri Jai Singh, (The Then Constable, Special Staff, East District, Delhi Police) 9. Sudhir Kumar, S/o Shri Roop Narayan Tripathi (The Then Constable, Special Staff, East District, Delhi Police) Order on Cognizance ("Cognizance Refused") Page 2 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 10. Satish Rana, S/o Shri Sheesh Pal Rana (The Then SubInspector, Special Staff, East District, Delhi Police) 11. Nagender, S/o Shri Gajender Singh (The Then Head Constable, Special Staff, East District, Delhi Police) 12. Rustam Ahmad, S/o Shri Kanwar Ahmad (The Then Constable, Special Staff, East District, Delhi Police) 13. Upender, S/o Shri Satpal (The Then Constable, Special Staff, East District, Delhi Police) 24.05.2012 O R D E R:
On 23.01.2012, the Hon'ble Supreme Court of India in SLP (Crl.) No.8790/2012, titled as, "Shri Chander Bhan Singh V/s Statish Rana & Ors." was pleased to give directions to this court to expedite the hearing and Order on Cognizance ("Cognizance Refused") Page 3 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 to pass appropriate orders on the question of cognizance in this matter, preferably within a period of three months from the date of filing of copy of said order before this court. The copy of aforesaid order was placed on record by the learned PP for CBI on 30.03.2012, whereafter this court heard arguments on the point of cognizance advanced at bar by Shri Rajan Dahiya, Ld.PP for CBI; Dr.Vijender Mehandiyan, Advocate assisted by Shri Mukesh Hooda and Ms.Babita Chaudhary, Advocates for the complainant; Shri Rajiv Mohan, Ld.Special PP for Govt. of NCT of Delhi, assisted by Shri Anupam Sharma, Advocate and perused the entire material on record as also the Protest Petition filed by Shri Chander Bhan Singh (hereinafter referred to as "complainant"), father of deceased Upender @ Rupender @ Kanu Jat (hereinafter referred to as "Kanu Jat").
2. The case has a chequered history. The matter was investigated by CBI in terms of the directions passed by by the Hon'ble High Court of Delhi in Criminal Writ Petition No.70/2002, titled as, "Shri Chander Bhan Singh V/s State". After completion of investigation, Closure Report was filed in the matter with the prayer that the Final Report U/s 173 Cr.P.C (Closure Report) may be accepted and the documents/articles seized in the case during the course of investigation may be allowed to be returned to the concerned persons/department(s) etc from whom the same were seized. Order on Cognizance ("Cognizance Refused") Page 4 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
3. This court vide detailed order dated 06.08.2008 had not accepted the Closure Report filed by CBI and had taken cognizance against 13 policemen namely SI Vinay Tyagi (A2), SI Atul Tyagi (A3), HC Satinder Singh (A4), Ct.Neeraj Kumar (A5), Ct.Prem Pal Singh (A6), Ct.Raj Kumar (A7), Ct.Hari Om (A8), Ct.Naresh Pal (A9), Ct.Sudhir Kumar (A10), SI Satish Rana (A11), HC Nagender (A12), Ct.Rustam Ahmed (A13) and Ct.Upender (A14) (hereinafter referred to as "accused persons"). Thereafter the aforesaid accused persons were summoned, compliance of the provisions of Section 207 Cr.P.C was made and the matter was committed to the court of Sessions. In the meantime, the accused persons filed "Criminal Revision Petition No.8/2009", titled as, "Satish Rana V/s CBI", interalia challenging the order dated 06.08.2008, passed by this court. The said Criminal Revision Petition was dismissed by the Ld.ASJ vide detailed order dated 14.05.2009.
4. Thereafter, the accused persons as well as the Govt. of NCT of Delhi filed separate Petitions U/s 482 Cr.P.C before the Hon'ble High Court of Delhi, challenging order dated 06.08.2008 passed by this court as well as order dated 14.05.2009, passed by the Ld.ASJ in aforesaid Criminal Revision Petition. All the aforesaid petitions were disposed off by the Hon'ble High Court vide common judgment dated 22.09.2011, interalia directing this court to reconsider the matter on the point of cognizance afresh and to take a decision on the Closure Report filed by CBI. CBI was also directed to place before this court the entire evidence collected during investigation, so as to Order on Cognizance ("Cognizance Refused") Page 5 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 enable this court to pass an appropriate order. The aforesaid judgment was challenged by the complainant before the Hon'ble Supreme Court by way of an SLP which was disposed of with the directions to this court to expedite the hearing on the point of cognizance.
5. The Govt. of NCT of Delhi was also one of the parties before the Hon'ble High Court and even the accused persons were also heard by the Hon'ble High Court and in the judgment dated 22.09.2011, the parties were directed to appear before this court. This court heard the matter extensively. Shri Rajan Dahiya, Ld.PP for CBI was heard with regard to the material collected by CBI during investigation; Dr.Vijender Mehandiyan and Shri Mukesh Hooda, Advocates were heard on the Protest Petition filed by complainant, whereas Shri Rajiv Mohan, Ld.PP for Govt. of NCT of Delhi and Shri Anupam Sharma, Advocate were heard purely on the point of sanction and the material having bearing upon the issue of sanction.
6. The facts of the case as borne out from the record (Closure Report as well as the S.P's Report of CBI) are that on 09.01.2002, one Shri Ujjagar Singh (retired IAS officer) was found murdered in the area of PS Preet Vihar and case FIR No.18/2002, U/s 302/392/34 IPC, PS Preet Vihar was registered in this regard. The then DCP, East District, Shri Manoj Kumar Lal, in order to find out the culprits had constituted some teams of Special Staff officials from East District, to help and assist the Investigating Order on Cognizance ("Cognizance Refused") Page 6 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Officer of case FIR No.18/2002, PS Preet Vihar. One of the teams constituted by DCP (East) in this regard was headed by SI Vinay Tyagi, who at that time was working in the Special Staff of DCP (East). On 11.01.2002, the accused persons made a DD Entry No.45 in the O/o Special Staff of DCP (East) and left for collecting information about criminals of some cases of the East District, assigned to them by DCP (East). The said DD Entry was made at about 12.30 PM and the object of departure mentioned therein was to collect information about criminals ("Surag Risani"). All the accused persons were duly armed, having got the same issued from appropriate authority. After roaming about in the area for fairly long time, the accused persons were present at PS Preet Vihar. SI Vinay Tyagi went inside the PS, where DCP (East) and other higher police officers of the District were already present there in connection with investigation of case FIR No.18/2002, PS Preet Vihar. At about 10.10 PM, a secret informer met SI Vinay Tyagi in PS Preet Vihar and informed him regarding presence of Kanu Jat with large quantity of ammunition in House No.B49, Pandav Nagar, Delhi, who was wanted in several criminal cases of UP and Delhi. Simultaneously, information was also received by DCP (East) from two reporters namely Shri Kamal Sharma and Shri Kamaljeet Singh, about the presence of a wanted criminal in the area of Pandav Nagar. DCP (East) exchanged this information with SI Vinay Tyagi and directed him to immediately go to the said house for necessary action. Accordingly, the accused persons left for Pandav Nagar. SI Vinay Tyagi, the team leader halted the team near Gurudwara, Pandav Nagar and constituted Order on Cognizance ("Cognizance Refused") Page 7 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 four subteams. One of the team members namely ASI Majid Khan was sent to intimate the local police (PS Trilokpuri) regarding the presence of Kanu Jat. The constitution of four teams was as under:
(a) Team headed by SI Satish Rana included HC Nagender, Ct.Upender and Ct.Rustam;
(b) Team headed by SI Atul Tyagi included Ct.Neeraj and Ct.Sudhir;
(c) Team headed by HC Satender included Ct.Raj Kumar and Ct.Prem Pal and;
(d) Team headed by SI Vinay Tyagi included Ct.Naresh and Ct.Hari Om.
The aforesaid teams thereafter left the Gurudwara at about 11.00 PM. SI Vinay Tyagi was in Tata Sumo bearing Regn. No.DL1CF/4100 with HC Satender, who was driving the aforesaid vehicle and Ct.Raj Kumar, Ct.Hari Om, Ct.Prem Pal and Ct.Naresh. All of them were carrying their sanctioned weapons; whereas SI Satish Rana was in Maruti Car bearing Regn. No.UP12EF/0200 alongwith HC Nagender, Ct.Upender and Ct.Rustam, whereas SI Atul Tyagi was in Maruti Car bearing Regn. No.DL3CN/3660 alongwith Ct.Neeraj and Ct.Sudhir. It was decided by SI Vinay Tyagi that team headed by SI Satish Rana would go at the front main door of House No.B49, Pandav Nagar and knock at the door, whereas the team headed by HC Satender was directed to remain near the gate of primary school, whereas the team headed by SI Atul Tyagi was directed to remain present at the Order on Cognizance ("Cognizance Refused") Page 8 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 opposite side whereas the team of SI Vinay Tyagi decided to position itself on the back side of the said house below the balcony.
7. As decided by the team leader, SI Satish Rana and his team went to the main door of the said house and rang the door bell, pursuant whereto a young man opened the wooden door, whereas the grill iron door remained bolted from inside and was not opened. SI Satish Rana introduced himself and asked the man to open the door. The door was not opened and the said young man ran to the back side and started firing at the police party through the window. The police party took shelter behind their vehicles and drew their weapons. At that time, SI Vinay Tyagi sent wireless messages demanding police force from the local Police Station, which were recorded as DD No.27 A at about 11.15 PM and DD No.29A at about 11.19 PM. The said young man started hurling abuses at the policeman and took out his revolver and opened fire upon the police party and also jumped through the window with a view to escape. After landing on the ground, he again stood up and started firing. The police party also opened retaliatory fire from three sides, as a consequence whereof he fell down. When the movement of his body stopped, SI Vinay Tyagi ordered to stop the firing. The deceased was identified as "Kanu Jat" and a 0.38 bore revolver was found near his right hand and a silver coloured Panasonic mobile phone (model GD92) was found lying near his left hand. The mobile instrument also had a bullet embedded in it. The deceased was lying upside down with his head towards south side and Order on Cognizance ("Cognizance Refused") Page 9 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 feet towards window of the house. In the meantime, pursuant to DD No.27A and 29A, SHO PS Trilokpuri namely Mohd. Ali and ACP Kalyan Shri M.R Gothwal and after receipt of wireless message sent by SI Vinay Tyagi in the District many Inspectors, including Inspector K.C Sharma, Addl.SHO, PS Mayur Vihar, Inspector Mahesh Tolia, SHO, PS Mayur Vihar and DCP (East) Shri Manoj Kumar Lal also reached at the spot. The media persons also arrived at the spot. Crime Team which also reached at the spot photographed the entire crime scene. The crime scene was also inspected by DCP (East), Shri Manoj Kumar Lal. Thereafter, SI Vinay Tyagi prepared rukka, took into possession the 0.38 bore revolver recovered from the spot. The rukka to PS Trilokpuri was sent through HC Satender for registration of FIR. After registration of FIR No.14/2002, PS Trilokpuri, SI Ashok Giri reached at the spot and took over the investigation. He seized the mobile phone of Kanu Jat, one gold chain and one silver coloured ring. He prepared a map of crime scene, collected samples of the soil, inquest/death report and sent the body of Kanu Jat for postmortem to Lal Bahadur Shastri Hospital.
8. On 12.01.2002, DCP (East) Shri Manoj Kumar Lal sent a letter bearing No.44/SHO/Trilokpuri to the Health Secretary of Govt. of NCT of Delhi for constitution of a Medical Board for conducting postmortem upon the body of deceased Kanu Jat, pursuant whereto Health Secretary constituted a Medical Board on 14.01.2002, consisting of Doctors Shri Akash Jhanji, Shri K.L Sharma and Shri K. Goel and the postmortem was conducted in Aruna Asaf Ali Government Hospital Mortuary, Subzi Mandi. Order on Cognizance ("Cognizance Refused") Page 10 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
9. On 12.01.2002 itself, DD No.55 was lodged by SI Vinay Tyagi in East District Lines, Delhi with regard to his arrival alongwith his team to the office. In this detailed DD Entry, he explained the entire encounter, wherein Kanu Jat was killed. It was further recorded therein that arms and ammunitions had been deposited in Malkhana of East District Lines by him and his other team mates.
10. Thereafter, on 13.01.2002, the complainant filed a complaint before SHO, PS Trilokpuri, interalia stating therein that on 11.01.2002, at about 11.00 PM, about 15 policemen armed with weapons entered his house, ransacked it and took away gold jewellery and other valuables, including some documents and cash worth Rs.30,000/. They threw away his son Kanu Jat through window of a room on first floor/upper ground floor. After his falling down on the ground, policemen gunned him down.
11. Thereafter, on 15.01.2002, an application was moved before the then Illaka Magistrate, Shri Manu Rai Sethi for preserving the body of Kanu Jat.
12. Thereafter, on 17.01.2002, "Criminal Writ Petition bearing No. 70/2002", titled as, "Chander Bhan Singh V/s State & Anr.", was filed before the Hon'ble High Court, seeking registration of FIR against the policemen and investigation thereof to be got conducted by CBI and further to Order on Cognizance ("Cognizance Refused") Page 11 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 quash FIR No.15/2002, dated 12.02.2002, U/s 25 Arms Act, PS Trilokpuri, registered against his other son Shri Devender Singh. The damages amounting to Rs.50.00 Lakhs were also claimed for unlawful deprivation of the life of Kanu Jat. In the said Writ Petition in para 3, the stand of the complainant was similar to the one which was in his complaint dated 13.01.2002 to SHO, PS Trilokpuri. In the aforesaid Writ Petition, a miscellaneous application was also filed bearing No.53/2002, wherein a direction seeking to conduct second postmortem upon the body of Kanu Jat was sought. This prayer was rejected by the Hon'ble High Court, however, the corpus of deceased was directed to be preserved till 23.01.2002. On 22.01.2002, the Hon'ble High Court gave further directions to the Investigating Officer to conduct "Dermal Nitrate Test" on the hands of deceased for the purpose of getting any clue if the hands of deceased had any gun shot residues. Pursuant to the aforesaid directions passed by the Hon'ble High Court, IO on 22.01.2002 itself sent a letter to Director, FSL, Malviya Nagar for conducting the said test. The said test was accordingly conducted. Thereafter, the aforesaid Writ Petition was disposed off by the Hon'ble High Court vide judgment dated 30.01.2002, whereby it was directed that the investigation of case FIR No.14/2002, PS Trilokpuri (registered on the rukka of SI Vinay Tyagi against Kanu Jat) and FIR No.15/2002, PS Trilokpuri (registered against other son of complainant namely Shri Devender Singh U/s 25 Arms Act) be transferred to CBI. IO was directed to handover the entire record of investigation of both the cases to Director, CBI within one week. It Order on Cognizance ("Cognizance Refused") Page 12 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 was further directed that the investigation in the matter be conducted by an officer not below the rank of Dy. Superintendent of Police. The other reliefs sought for by the complainant, i.e compensation and quashing of FIR No. 15/2002 were not granted.
13. Pursuant to the aforesaid judgment of the Hon'ble High Court, CBI registered RC No.2(S)/2002/SICIV/ND (in respect of case FIR No. 14/2002) and RC No.3(S)/2002/SICIV/ND (in respect of case FIR No. 15/2002).
14. During the course of investigation by CBI, the statements of 45 witnesses were recorded. Statements of DCP (East) Shri Manoj Kumar Lal, Shri Kamal Sharma and Shri Kamaljeet Singh were also recorded. The Superintendent of Police, CBI, Incharge of the investigation namely Shri J.S Waraich prepared his report and send the same to Commissioner of Police, Delhi Police, seeking sanction for prosecution of accused persons in the matter. The Commissioner of Delhi Police sent the same to His Excellency, the Lt.Governor of Delhi, as the competent authority to grant sanction for prosecution in respect of the officials of Delhi Police is His Excellency, the Lt.Governor. His Excellency the Lt.Governor of Delhi vide order dated 03.01.2008 refused to grant sanction for prosecution of accused persons in this matter, primarily on the ground that accused persons were found to have not acted in a predetermined manner and death of Kanu Jat was found to be Order on Cognizance ("Cognizance Refused") Page 13 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 natural consequence of the retaliatory firing, while exercising their right of private defence and while discharging their duties as officials of Special Staff. After refusal of sanction for prosecution of accused persons by His Excellency, the Lt.Governor of Delhi, the Closure Report was filed in this matter, without in any manner discussing the evidence collected by CBI during investigation and leading to formation of an opinion by it that death of Kanu Jat was in a fake encounter committed by the accused persons under a conspiracy. Even the names of DCP (East) Shri Manoj Kumar Lal, Shri Kamal Sharma and Shri Kamaljeet Singh were not mentioned in the list of witnesses.
15. The learned PP for CBI has argued that the "Closure Report"
filed in this matter at the most expresses the opinion of the IO and this court is not bound by the same and can independently assess the evidence collected by CBI, with a view to see as to whether the accused persons acted in discharge of their official duties at the time of killing Kanu Jat. It is further argued that IO in his wisdom did not find the statements of DCP Manoj Kumar Lal, Shri Kamal Sharma and Shri Kamaljeet Singh recorded U/s 161 Cr.P.C to be reliable and as such did not make a reference thereof either in the Closure Report or in the list of witnesses. The said three witnesses are stated to be planted witnesses. It is further argued that there is no documentary evidence that the accused persons were entrusted with the investigation of case FIR No.18/2002, PS Preet Vihar and as such, the procurement of arms by them on the pretext of investigation of aforesaid case FIR is a false defence.Order on Cognizance ("Cognizance Refused") Page 14 of 77
RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
16. The learned PP further argued that CBI in Draft Chargesheet concluded that Kanu Jat had not fired any shot as no "Gun Shot Residue" was found on his hands and no identifiable finger prints could be found on the recovered weapon from him. He further emphasized that CBI had discarded the versions of witnesses Shri Kamal Sharma, Crime Reporter, Nav Bharat Times and Shri Kamaljeet Singh, Photographer of Times of India because their names appeared only in the statement of DCP (East) Shri Manoj Kumar Lal and did not figure in any preliminary investigation. He referred to the conclusions reached at by CBI in Draft Chargesheet, which are reproduced as under:
"Even if one were to believe their contention regarding firing by Kanu Jat, the accused persons cannot get any benefit from the right to selfdefence which had ceased to exist immediately after Kanu Jat was disarmed and begging for mercy.
Further, if we believe that .38 bore revolver recovered from the deceased Kanu Jat was used to fire at the policemen and subsequently he was killed, the fingerprints of deceased could have been found as the allegedly recovered revolver. Had Kanu Jat fired with that revolver, then Gun Shot Residue particles should have been detected on his hands which has not been in this case. This means that the revolver was planted by the policemen. Moreover, Shri Devender Singh, brother of deceased Order on Cognizance ("Cognizance Refused") Page 15 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 has categorically stated that one of the members of the police party fired from each of the two firearms in his hands and, thereafter kept one of these weapons near the dead body of his brother Kanu Jat.
Further, SI Vinay Tyagi's contention in his complaint that the team had assembled for the purpose of investigation of the murder case of Shri Ujjagar Singh, IAS is belied by the fact that neither SI Vinay Tyagi nor any member of the raiding party was an IO of that case and they did not submit any case diaries in the murder case of Shri Ujjagar Singh.
The contention of the accused persons regarding exchange of fire between Kanu Jat and raiding party is also not sustainable in view of the fact that none of the members of the police party suffered any fire arm injury.
That the final conclusion of CBI in the draft charge sheet was that all the police officials named above have also committed gross misconduct and failed to maintain their absolute integrity and devotion to duty and acted in a manner unbecoming on their part as public servants.
In the draft sanction, CBI has made the ground to accord sanction that all the police officials exceeded their right of private defence.Order on Cognizance ("Cognizance Refused") Page 16 of 77
RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
17. Dr.Vijender Mehandian, learned counsel for the complainant in addition to the arguments of learned PP for CBI further argued that in RC No. 3(S)/2002/SICIV/ND (in respect of case FIR No.15/2002, PS Trilokpuri, against Shri Devender Singh), Closure Report was filed by CBI, which was accepted by this court and the said order was not challenged before the Higher Courts and the same attained finality and as such, the said case was found to be falsely instituted by Delhi Police and therefore, the present case is also false.
18. It is further argued that the postmortem report in this matter was managed by Delhi Police as there is no justification on record as to why postmortem was not conducted in Lal Bahadur Shastri Hospital and was conducted in Aruna Asaf Ali Hospital. The conduct of SI Vinay Tyagi has been questioned by arguing that there is no material on record that on 11.01.2002 at about 10.10 PM he was present in PS Preet Vihar. It is further argued that the "Dermal Nitrate Test" conducted upon the hands of Kanu Jat clearly establishes that he had not used 0.38 bore revolver, shown to have been recovered from his possession from which he had allegedly fired upon the police party, which triggered the retaliatory firing in which he died. It is further argued that SI Vinay Tyagi acted in an unholy haste in writing rukka and sealing the aforesaid revolver without even waiting for the IO of the case to come and take over the investigation. It is further argued that there are statements of independent witnesses of the locality which cannot be brushed Order on Cognizance ("Cognizance Refused") Page 17 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 aside at this stage. It is further argued that it cannot be the part of the duty of a policeman to kill an innocent person under a conspiracy and as such the question of obtaining Sanction U/s 197 Cr.P.C against the accused persons does not arise and the refusal to grant sanction for the prosecution of the accused persons by the His Excellency the Lt.Governor of Delhi is of no consequences and in any case, the same cannot be a hindrance for this court in taking cognizance of the offences in this matter against the accused persons. A number of judgments of the Hon'ble Supreme Court were also referred to in support of the aforesaid contention, which I will advert to in the later part of this order.
19. Per contra, Shri Rajiv Mohan, Ld.PP for the Govt. of NCT of Delhi has taken me through various provisions of Constitution of India and judgments to show that after refusal of Sanction by His Excellency the Lt.Governor of Delhi, this court cannot take cognizance in the matter. Several provisions of Cr.P.C as well as judgments of the Hon'ble Supreme Court were also referred to, which I will advert to a little later in this order. The learned PP further took exceptions to the Ld.PP of CBI arguing contrary to the prayer made by CBI in the Closure Report. He, however, confined his arguments to the legal submissions that the accused persons acted in discharge/purported discharge of their official duties and as such, no criminal prosecution could have been instituted against them in this matter. Order on Cognizance ("Cognizance Refused") Page 18 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
20. I have given thoughtful consideration to the arguments advanced at bar before me. The issues which fall for consideration of this court are as under:
(a) Whether in view of the bar of Section 197 Cr.P.C this court can take cognizance even on the Closure Report filed by CBI?
(b) Whether the present prosecution could not have been instituted against the accused persons in view of the bar U/s 140 of Delhi Police Act?
(c) Whether the CBI having taken a stand in the Closure Report that the acts of the accused persons were in discharge of their official duties and then sought sanction from the competent authority, whether it can take a different stand during arguments before this court?
(d) Whether this court can overlook and over ride the decision of His Excellency the Lt.Governor of Delhi in refusing to grant sanction for the prosecution of accused persons and substitute its own opinion thereupon?
All the aforesaid issues though framed separately are inter connected, therefore, they are being disposed off through common adjudication.
Order on Cognizance ("Cognizance Refused") Page 19 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
21. There are two provisions, one U/s 197 Cr.P.C, 1973 and another U/s 140 of Delhi Police Act, 1978 which mandate taking of sanction from competent authority for institution of prosecution against the accused persons. Under Section 140 of Delhi Police Act, 1978, the authority mentioned for grant/refusal for institution of prosecution has been mentioned as "Administrator" of Delhi; whereas U/s 197 Cr.P.C, the authority mentioned is "Government", which could be the State Government or the Central Government, depending upon the cases. There is Government of India Gazette Notification, issued by the Ministry of Home Affairs, dated 20.03.1974, bearing No.SO/183(E), which reads as under:
***** THE GAZETTE OF INDIA PART-II-SECTION-3-SUB SECTION(ii) PULISHED BY AUTHORITY NEW DELHI, WEDNESDAY, MARCH 20, 1974/PHALGUNA 29, 1895 Separate paging in give to this Part in order that it my be filed as a separate compilation MINISTRY OF HOME AFFAIRS NOTIFICATIONS New Delhi, the 20th March 1974 S.O. 183(E) - In pursuance of clause (1) of Order on Cognizance ("Cognizance Refused") Page 20 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 article 239 of the Constitution and in suppression of all previous orders of the subject, the President hereby directs that the Administrators of all Union Territories other than Arunachal Pradesh and Mizoram (whether known as Administrator. Chief Commissioner or Lieutenant Governor) shall subject to the control of the President and until further orders, exercise the powers and discharged the functions under the Code of Criminal Procedure, 1973 (2 of 1947) as mentioned in the Schedule hereto annexed, subject to the condition that the Central Government may itself exercise all or any of those powers and discharge all or any of those functions, should it deem necessary so to do.
2. This notification shall have effect from the 1st April, 1974.
Powers/functions
1. All powers and functions of the State Government except those conferred by sections 8 and 477.
2) (a) the powers and functions of the Central Government under Sub-section (1) of the section 197 and sub-section (4) of section 199 in respect of persons employed in connection with the affairs of the concerned Union territory.
***** Order on Cognizance ("Cognizance Refused") Page 21 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
22. Further, there is a Notification issued by the Government of Delhi, bearing No.F.10/77/78HPII, dated 07.04.1980, which reads as under:
***** DELHI ADMINSTRATION DELHI (HOME POLICE DEPARTMENT) Delhi, dated 7.4.80 NOTIFICATION No. F.10/77/78-HP-II. In exercise of the powers conferred upon him under sub section (3) of Section 197 Cr.P.C., 197 read with Govt. of India's notification No. S.O.183(E), dated 29th March 1974, the Lt. Governor, Delhi is hereby pleased to direct that the provisions of sub- section (2) of the said Section shall apply to serving police official of all ranks of Delhi Police force charged with the maintenance of public order.
By order and the name of Lt. Governor Sd/-
(W.C.KHAMBRA) Under Secy (Home). DAD *****
23. A joint reading of the aforesaid Notifications make it abundantly clear that the Sanctioning Authority for officials of all ranks of Delhi Police is Order on Cognizance ("Cognizance Refused") Page 22 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 His Excellency the Lt.Governor of Delhi. In this case, only sanction U/s 197 Cr.P.C was sought against the accused persons, but no sanction U/s 140 of the Delhi Police Act was sought.
24. Shri Dahiya, Ld.PP for CBI has very vehemently argued that the aforesaid Notifications do not ipsofacto make His Excellency the Lt.Governor of Delhi to be the sanctioning authority, in respect of the accused persons as Section U/s 197 (3) Cr.P.C contemplates that only in the category of members of the force charged with maintenance of "Public Order" that the sanction would be granted by His Excellency the Lt.Governor and the acccused persons were not doing the duty of maintenance of public order and as such, the sanction in their case should have been granted by Worthy Commissioner of Police as none of the accused persons is above the rank of SubInspector, whose appointing authority is Worthy Commissioner of Police. The word "public order" came up for the interpretation of Hon'ble Supreme Court in case reported as, "2001 Crl.LJ 2897", titled as, "Rizwan Ahmed Javed Sheikh & Ors. V/s Jamal Abdul & Ors.", wherein the Hon'ble Supreme Court after considering some earlier judgments on the point and interpretation of the provisions of Police Act held that, "It is truism to state that it is the duty of every member of police force to see that public order is maintained. This is the general duty of every member of the police force styled as police officer." It was further held that narrow meaning should not be assigned to word "maintenance of public order" and it has to be Order on Cognizance ("Cognizance Refused") Page 23 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 given a wider amplitude. Further, in case reported as, "1986 Cr.LJ 314", titled as, "Balbir Singh V/s D.N Kadyan", the Hon'ble Supreme Court of India considered both the aforesaid Notifications and held that His Excellency, the Lt.Governor of Delhi is the sanctioning authority for all ranks of officers of Delhi Police. Therefore, there is no force in the argument of Ld.PP for CBI that sanction for prosecution of accused persons was considered by wrong authority.
25. The accused persons in this case were posted at the relevant time as officers of Special Staff to DCP (East), charged with the duties and functions of maintenance of law and order, prevention of crime and investigation of offences, including multifarious tasks of prevention of crime, apprehension of criminals wanted in various cases. As per Circular No. 44/C&T/94, dated 28.11.1994, DCP/Hq.II, the Special Staff was created in the O/o every DCP, who are entrusted with the function of maintaining law & order, prevention of crime, investigation, apprehension of persons suspected of having committed crimes. As per CBI investigation, Kanu Jat was found involved in following cases:
1. FIR No. 651/91, U/s 302 IPC, PS Kavi Nagr, Ghaziabad, UP.
2. FIR No. 773/92, U/s 353/323/506 IPC, PS Kavi Nagar, Ghaziabad.
3. FIR No. 58/96, U/s 504/506 IPC, PS Kavi Nagr, Ghaziabad, UP.
4. FIR No. 340/96, U/s 302 IPC, PS Kavi Nagr, Ghaziabad, UP.
5. FIR No. 143/97, U/s 3,4 Goonda Act, PS Kavi Nagr, Ghaziabad, UP.Order on Cognizance ("Cognizance Refused") Page 24 of 77
RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
6. FIR No. 510/97, U/s 302 IPC, PS Kavi Nagr, Ghaziabad, UP.
7. FIR No. 557/97 U/s 25 Arms Act, PS Kavi Nagr, Ghaziabad, UP.
8. FIR No. 500/98, U/s 302 IPC, PS Kotwali, Ghaziabad, UP.
9. FIR No. 628/98, U/s 302 IPC, PS Kavi Nagr, Ghaziabad, UP.
10.FIR No. 653/98 U/s 107 Cr.P.C, PS Kavi Nagr, Ghaziabad, UP.
11. FIR No. 40/99, U/s 110 Cr.P.C, PS Kavi Nagr, Ghaziabad, UP.
12.FIR No. 651/99, U/s 307 IPC, PS Kavi Nagr, Ghaziabad, UP.
Out of these cases (1) FIR No. 773/92 U/s 353/323/506 IPC, PS Kavi Nagar, (2) FIR No. 340/96 U/s 307 IPC PS Kavi Nagar, Ghaziabad, U.P and (3) FIR No. 651/99 U/s 307 IPC, PS Kavi Nagar, Ghaziabad, UP were registered regarding the incidents, in which he fired upon police party when he was tried to be apprehended.
Out of the above mentioned cases, Kanu Jat was involved in the following cases of murder:
1. FIR No. 651/91, U/s 302 IPC, PS Kavi Nagr, Ghaziabad, UP.
2. FIR No. 340/96, U/s 302 IPC, PS Kavi Nagr, Ghaziabad, UP.
3. FIR No. 510/97, U/s 302 IPC, PS Kavi Nagr, Ghaziabad, UP.
4. FIR No. 500/98, U/s 302 IPC, PS Kotwali, Ghaziabad, UP.
5. FIR No. 626/98, U/s 302 IPC, PS Kavi Nagr, Ghaziabad, UP.
Out of these case case FIR NO. 626/98 U/s 302 IPC, PS Kotwali, Ghaziabad was related to committing murder of Inspector Pritam Singh, who Order on Cognizance ("Cognizance Refused") Page 25 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 remained posted in Special Task Force, UP Police.
It has also been submitted that the deceased Kanu Jat was wanted in FIR No. 500/98 U/s 302 IPC, PS Kotwali, Ghaziabad, UP (2) FIR No. 626/98 U/s 302 IPC PS Kavi Nagar, Ghaziabad, UP (3) FIR No. 340/96, U/s 302 IPC, PS Kavi Nagr, Ghaziabad, UP and against whom NBWs were issued in Case FIR No. 651/99 U/s 307 IPC PS Kavi Nagar, Ghaziabad, UP. He was PO in case FIR NO. 773/92, U/s 353/186/307/506 IPC, PS Kavi Nagar, Ghaziabad, UP.
26. Chapter 11 of Cr.P.C deals with the preventive action of the police. Sections 149, 150 and 151 relevant for the present are reproduced as under:
149. Police to prevent cognizable offences -
Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence.
150. Information of design to commit cognizable offences - Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.
Order on Cognizance ("Cognizance Refused") Page 26 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
151. Arrest to prevent commission of cognizable offences - (1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
(2) No person arrested under sub section (1) shall be detained in custody for a period exceeding twentyfour hours fromthe time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force.
Whereas, Chapter 5 of Cr.P.C deals with the arrest of persons; Section 41 prior to its amendment in the year 2009 authorised every police officer to arrest any person without an order from a Magistrate and without a Warrant, who had been concerned in any cognizable offence or against whom creditable information has been received or reasonable suspicion existed of his involvement in offence so concerned. Section 47 authorises any police officer to search an accused sought to be arrested; Section 46 deals with the procedure as to how the arrest is to be effected and if the person sought to be arrested forcibly resists the endeavour of his arrest or attempts to evade the arrest, then the police officer may use all means necessary to effect the arrest. However, this section does not give a right to cause death of a person who is Order on Cognizance ("Cognizance Refused") Page 27 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 not accused of offences punishable with death or imprisonment for life. Admittedly, Kanu Jat was wanted in case FIR No.500/1988, U/s 302 IPC, PS Kotwali, Ghaziabad; FIR No.626/1998 U/s 302 IPC, PS Kavi Nagar, Ghaziabad; FIR No.340/1996, U/s 307 IPC, PS Kavi Nagar, Ghazibad and against whom NBWs were already lying issued in case FIR No.651/1999, U/s 307 IPC, PS Kavi Nagar, Ghaziabad. The certified copies of the proceedings of case FIR No.773/1992, U/s 353/186/307/506 IPC, PS Kavi Nagar, Ghaziabad show that at the relevant date, Kanu Jat was "Proclaimed Offender" in that case.
27. The learned PP for Govt. of NCT of Delhi made submissions on merits of the case as also the material collected by CBI during investigation with a view to put forward point that the conclusion reached at by CBI during investigation are not sustainable even on the facts of the case. His arguments, pointwise are summarized as under:
Sl. Conclusion of CBI Version of Delhi Police No.
1. Deceased Kanu Jat CBI had relied on the statement of was thrown from deceased's father Chande Bhan and balcony. brother, Devinder. But this version is not corroborated by Postmortem report, which does not contain any collateral injury over the dead body other than firearms injuries.
Thus postmortem report completely ruled out the knock Order on Cognizance ("Cognizance Refused") Page 28 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Sl. Conclusion of CBI Version of Delhi Police No. down of the deceased from the height. Otherwise if a person is thrown from the height of 10 to 12 ft. he would certainly have fractures or at least external injuries on his body. The injury is commensurate to a voluntary jump.
Moreover, as per the statement of the father, brother and the mother of the deceased, three four police persons entered from the front of their house, two three police persons entered from the rear of their house to go inside and after sometime they saw their son Rupender lying in the back lane surrounded by five six persons, who were firing at him.
Further, with respect to whether the body was dragged/pulled from the first floor to the ground floor forcibly, it is submitted that the expert report vide letter No.CFSL2002/F0321, dated 20.08.2002 by Sh. C.K. Jain, Senior Scientific Officer also runs contrary to this fact. It states that the laboratory examination of the clothes of Kanu Jat has revealed that the clothes are in normal Order on Cognizance ("Cognizance Refused") Page 29 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Sl. Conclusion of CBI Version of Delhi Police No. condition and no pulling/dragging marks on the clothes could be observed.
2. Non detection of The CBI has relied on Gun Shot Gun Shot Residue Residue test, which says that no Particles on the Gun Residue particles were found right or left hand of on the right or left hand of the the deceased. deceased, which clearly prove that he had not fired any bullet on the police party and hence the encounter was fake.
In this regard, it may be noted that such test was conducted after 12 days of death i.e. 23.01.2002.
Moreover, dead body of the deceased Rupender was washed from running tap after the postmortem in order to hand over the dead body to the relatives of the deceased. In such situation CBI has failed to consider that there was no possibility at all of finding Gun Shot Residue Particles on the deceased's hand as per the authority on Forensic Medicine titled "Forensic Medicine and Toxicology" by Shri J.B. Mukerji.
It was submitted that as per the Order on Cognizance ("Cognizance Refused") Page 30 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Sl. Conclusion of CBI Version of Delhi Police No. procedure under Medical Jurisprudence after conducting the postmortem of dead body the same is required to be washed with the water, dried and covered with cloth.
That, in present case also the postmortem was conducted on 14.01.2002 and in the Writ Petition as filed by Shri Chander Bhan, father of deceased, on his request it was directed vide order dated 22.01.2002. That the said test be got conducted. That Gun Shot Residue Test was conducted on 23.01.2002.
Also as discussed in Forensic Medicine and Toxicology by Shri J.B. Mukherji, it has been clearly stated that Dermal Nitrate Test will be negative.
a) When the hands have been washed.
b) Weapon is well constructed.
c) When examination is done long after supposed firing.
That in the present case all the above three circumstances were present, since the body was washed after postmortem. The weapon was Order on Cognizance ("Cognizance Refused") Page 31 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Sl. Conclusion of CBI Version of Delhi Police No. of make "Royal Arms Factory enfield (UK", which is imported well constructed weapon. Further, the examination was done after the period of 12 days.
Further, as per the literature on firearms by Dr. B.R. Sharma clearly states that Revolver and firearms with loose breech closure or shot barrel upto 5 cms are likely to deposit residues on hand. In the present case the Revolver was well constructed having barrel of 15 Cms, thus there was no occasion on this count also for the availability of the residue.
3. No finger print on . The CBI has also alleged that 38 revolver since no finger print was found on recovered as per the revolver recovered from deceased report Kanu Jat, it proves that he had not fired on police party. It is submitted that the CBI did not consider the Ballistic report which clearly states that six cartridges case as recovered from the spot have been fired from .38 revolver bearing No. UE56A 1465 i.e. Revolver in question. Also the finger prints expert in his report has stated that "No identifiable Order on Cognizance ("Cognizance Refused") Page 32 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Sl. Conclusion of CBI Version of Delhi Police No. prints could be developed/detected from the Revolver".
That, in any case there are various factors which independently or in combination can account for lack of prints on the surface of the weapon.
a). The recovered revolver was sent to CFSL after an inordinate delay of five months and ten days i.e. on 19.06.2002 (document D9), during which period the said weapon had been touched and handled which may have caused the prints to smear. True copy of document D9 is already annexed as Annexure A16.
b). The environment also causes the latent prints to deteriorate.
c). Individuals do not always have sufficient quantity of perspiration and contaminates on their hands to be deposited, necessary to cause finger prints.
d). The surface may also not be suitable for retaining the minutes Order on Cognizance ("Cognizance Refused") Page 33 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Sl. Conclusion of CBI Version of Delhi Police No. traces of moisture in a form representative of the ridge detail.
The lack of finger prints neither suggests implies or establishes that any person did or did not touch the item of the evidence.
Without prejudice to what is stated above it is submitted that it is the allegation of prosecution that after firing in the air, the revolver was thrown on the ground by the police officials. Conversely on the same argument, why no finger prints of police party were found on the revolver, in such an event.
Moreover, Forensic Expert Allen Eagle Sham in his book has stated that it is rare for an identifiable finger print to be left on a fire arm especially a hand gun, only a small surface is suitable for leaving prints and recoil of the weapon causes the finger to slide and produce smudges. That in the present case also the expert stated that there is no identifiable finger print.
That presence of finger prints Order on Cognizance ("Cognizance Refused") Page 34 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Sl. Conclusion of CBI Version of Delhi Police No. depends on number of factors like surface of weapon, quality of perspiration and weather conditions. That in the winters the pores that exude perspiration tend to close and is a contributing factor in the lack of prints. It is submitted in the present case, day and time of incident is 11.1.2002 around 11:00 PM, when the weather is cold.
It was also argued that .38 revolver recovered from the deceased Kanu Jat was manufactured by Royal Arms Factory Enfield UK in 1956 and was sold to Pakistan in a contract supply of 600 revolvers to Pakistan as per the CBI's own investigation. However, the same has not been brought to its logical conclusion by CBI.
4. Nonascertainment As per the instruction of the of the direction from Director, CFSL, a team of CFSL/ which the shots were CBI experts visited the scene of fired crime at B49, Pandav Nagar, Delhi alongwith the team of ballistic and photo division on 06.03.2002 and it was observed that the direction of force applied could not be ascertained. The damage due to Order on Cognizance ("Cognizance Refused") Page 35 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 bullets or otherwise was observed by the Ballistic Division Officers.
5. Nonascertainment The statement recorded U/s 161 of the type of fire Cr.P.C of Dr.K.L Sharma, MBBS, arms and non Medical Superintendent (Forensic specificity of the Medicine), Purani Subzi Mandi person/ persons Mortuary reveals as under:
causing death. "The size of wounds mentioned by us of different injuries can't specify the type of fire arm/ammunition with which the same was caused.
We can't comment that if nine persons have fired from respective weapons with whose bullets the deceased was killed.
28. It is further argued that the competent authority, i.e His Excellency, the Lt. Governor of Delhi considered all the documents and aspects which were not considered by CBI while reaching at any of the above conclusions. That some of them are as follows:
(a) CBI has not relied upon the statements of the two independent witnesses namely Kamaljeet Singh and Kamal Sharma, Crime reporters.
(b) Moreover, their presence near the scene could have been checked from their mobile phone record, which CBI has not checked.
(c) CBI has also ignored the information at 23:15 hrs regarding firing from B49, Pandav Nagar on the wireless set, in this regard DD No. Order on Cognizance ("Cognizance Refused") Page 36 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 27A and DD No.29A, dated 11.01.2002 at 23:15 PM and 23:19 PM respectively were recorded in PS Trilokpuri.
(d) SI Vinay Tyagi had also informed to DCP Shri Manoj Kumar Lal from his mobile phone number 9811161465 and the same was not properly verified neither w.r.t Cell ID nor with respect to the timings. This is scientific evidence which should not have been left by any means, but CBI has not inquired about this aspect also.
(e) Postmortem report shows that there is no mention of burning, singeing and tattooing around the entry wounds of firearm which is diagnostic of point blank fire of the close range fire meaning thereby that Kanu Jat was not shot at by close range or point blank range, as alleged. This is supported by the observation made by Shri A.R Arora, SSO2nd (Ballistic) expert also says that the seven holes observed on the Tshirt of the deceased could have been caused by 9mm/7.62 mm bullets fired from beyond power range as no tattooing scorching, blackening, charring etc could be observed.
29. It was further submitted that expert report vide letter No.CFSL2002/F0321, dated 20.08.2002 by Shri C.K Jain, Sr. Scientific Officer runs contrary to this fact. It says that the laboratory examination of the clothes of the deceased Kanu Jat marked exhibits la and lb revealed that the clothes were in normal condition and no pulling/dragging marks thereupon could be observed.
Order on Cognizance ("Cognizance Refused") Page 37 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 This opinion is in response to the question that, "The clothes may please be examined and opinion may be given whether the clothes are torn and if so, whether it would be on account of pulling of the deceased or resistance from the deceased? Or on account of dragging of the deceased by other persons?".
(b) Shri Deepak Tanwar (Physics Division) in CFSL report vide reference No.1268/2 & 3 (S)/2002/SICIV, New Delhi, dated 04.03.2002 has given the observations after visiting the Crime Scene, i.e B49, Pandav Nagar, Delhi, which is as follows:
"In the house, it was found that the damage has been caused onlly in the bed room in the rear side of the flat. The damage only observed on the upper side window glass and on one corner of the left window pane of the room". This corroborates the stand of Delhi Police did not enter the house.
(c) That the CFSL Ballistic Report (Document D40 & D41) has opined that the firing had taken place from the back side lane of the house from beyond powder range, indicating that the police officials fired in retaliation from the back lane towards the first floor of the house of the deceased, corroborating the manner of incident as mentioned in FIR No.14/2002, Order on Cognizance ("Cognizance Refused") Page 38 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 U/s 307/186/353/506 IPC, PS Trilokpuri, Delhi.
(d) That as per recovery memo (document D27), one revolver of .38 bore having six empty cartridges were recovered from the spot near the body of deceased.
(e) As per recovery memo of empty cartridges and officials weapons (document D24), two leads pieces of bullet were found at the spot. The said articles were sent to CFSL by CBI vide request dated 19.06.2002 (document D9).
Ballistic Expert of CBI opined that one of the lead piece recovered from the spot was fired from the revolver recovered from the deceased (Document D17). As such, it was established from the scientific evidence filed by CBI that a lead piece/bullet found at the spot was fired from the revolver of the deceased.
(f) Document D26 - recovery memo of mobile phone found near the deceased mentions that it has a bullet embedded in it, showing that the deceased was making an attempt to escape apprehension with his mobile when the incident took place.
(g) That mark of bullet on the Santro car, parked near the position of one of the police teams in the back lane also points towards the factum of fire by deceased Kanu Jat at the police team.
Order on Cognizance ("Cognizance Refused") Page 39 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 I have given fleeting consideration to these arguments, but at this stage the most important aspect is with regard to sanction. The legal position with regard to sanction, as culled out from various judgments is as under.
30. The protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been done in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had Order on Cognizance ("Cognizance Refused") Page 40 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 reasonable connection with discharge of his duty, then it must be held to be official to which applicability of Section 197 Cr.P.C. cannot be disputed. (Vide: R. Balakrishna Pillai v. State of Kerala & Anr., AIR 1996 SC 901; S.K. Zutshi & Anr. v. Bimal Debnath & Anr., AIR 2004 SC 4174; Center for Public Interest Litigation & Anr. v. Union of India & Anr., AIR 2005 SC 4413; Rakesh Kumar Mishra v. State of Bihar & Ors., AIR 2006 SC 820; Anjani Kumar v. State of Bihar & Ors., AIR 2008 SC 1992; and State of Madhya Pradesh v. Sheetla Sahai & Ors., (2009) 8 SCC 617).
31. The question to examine as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation. There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be kept in mind that the cognizance is taken of the offence and not of the offender. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. However, performance of public duty under colour of duty cannot be camouflaged to commit a crime. The public duty may provide such a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning Order on Cognizance ("Cognizance Refused") Page 41 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 authority or by the court. It is quite possible that the official capacity may enable the pubic servant to fabricate the record or misappropriate public funds etc. Such activities definitely cannot be integrally connected or inseparably interlinked with the crime committed in the course of the same transaction. Thus, all 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 requirement of sanction. (Vide:
Bhanuprasad Hariprasad Dave & Anr. v. The State of Gujarat, AIR 1968 SC 1323; Hareram Satpathy v. Tikaram Agarwala & Ors., AIR 1978 SC 1568;
State of Maharashtra v. Dr. Budhikota Subbarao, (1993) 3 SCC 339; Anil Saran v. State of Bihar & Anr., AIR 1996 SC 204; Shambhoo Nath Misra v State of U.P. & Ors., AIR 1997 SC 2102; and Choudhury Parveen Sultana v.
State of West Bengal & Anr., AIR 2009 SC 1404).
32. In fact, the issue of sanction becomes a question of paramount importance when a public servant is alleged to have acted beyond his authority or his acts complained of are in dereliction of the duty. In such an eventuality, if the offence is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, grant of prior sanction becomes imperative. It is so, for the reason that the power of the State is performed by an executive authority authorised in this behalf in terms of the Rules of Executive Business framed under Article 166 of the Constitution of India insofar as such a power has to be exercised in terms of Order on Cognizance ("Cognizance Refused") Page 42 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Article 162 thereof. (Vide: State of Punjab & Anr. v. Mohammed Iqbal Bhatti, (2009) 17 SCC 92).
33. If there is discernible concern between the act complained off by the accused and his power of duties as police officer, the act complained off may fall within the description of colour of duty. However, in case where the act complained of does not fall within the description of colour of duty, the provisions of Section 140 of Delhi Police Act, 1978 would not be attracted.
34. In case reported as, "AIR 2004 SC 2179", titled as, "State of Orissa & Ors. V/s Ganesh Chandra Jew", Hon'ble Supreme Court has been pleased to hold as under:
"..... It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty.
There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be Order on Cognizance ("Cognizance Refused") Page 43 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant."
35. During the course of arguments, another question of law came to fore as to whether the accused persons can be heard at this stage and the material with them which was not collected by CBI, but having relevance to show that the acts complained off against the accused persons were in discharge of their official duties; whether the court is precluded from scrutinising the said material. This issue came before the Hon'ble Supreme Court in case reported as, "AIR 1998 SC 1524", titled as, "Suresh Kumar Bhikam Chand Jain V/s Pandey Ajay Bhushan & Ors.", wherein the apex court held as under:
"......The legislative mandate engrafted in subsection (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the concerned Government in a case where the acts complained of are alleged to have been committed by public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of Order on Cognizance ("Cognizance Refused") Page 44 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings."
36. Therefore, in view of the law laid down in the aforesaid judgment, this court can look into the relevant documents and the material which will be ipsofacto admissible, but not collected by CBI in this case limited, however, to the question as to whether Sanction U/s 197 Cr.P.C has application in the case in hand or not. In this case, the Investigating Officer neither collected DD No.45, dated 11.01.2002 from the O/o Special Staff of DCP (East) nor collected DD No.55, dated 12.01.2002 from the said office. Order on Cognizance ("Cognizance Refused") Page 45 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 The said DD Entries have relevance in the matter as DD No.45 shows that all the accused persons had left the O/o Special Staff at about 12.30 PM on 11.01.2002 in search of clues in the area of East Delhi in respect of FIR No. 18/2002, PS Preet Vihar; whereas DD No.55, dated 12.01.2002 shows the detail of the entire operation conducted by the accused persons in the matter. Further, the version of SI Vinay Tyagi has been that he was in touch with DCP (East) through his mobile phone, the landline phone of DCP and through wireless. Similarly, PW Shri Kamaljeet Singh had also made a call from landline No.2044572 on the mobile phone of DCP East, i.e 9811161465. The mobile phone being used by SI Vinay Tyagi at that time, as appearing in his statement recorded by IO was 9811578884. The least the IO of the case could have done was to have collected the Call Detail Records (CDRs) in respect of the aforesaid phone numbers. Copies of the CDRs of the aforesaid phone numbers have been produced in court on behalf of accused persons, which clearly show that the timings of talk between them, as mentioned by PW Shri Kamaljeet Singh, SI Vinay Tyagi and DCP (East) corroborate with each other. There is no apparent reason on record as to why the said CDRs were not collected by CBI. Similarly, the IO did not collect DD Nos.27 A and 29A of PS Trilokpuri, which explained that before starting operation SI Vinay Tyagi had flashed wireless message in the entire District and had demanded more police force. It is not the case of CBI that the said DD Entries were never made in PS Trilokpuri. The record of said DD Entries has been made available to this court. Further, the documents with regard to constitution of Order on Cognizance ("Cognizance Refused") Page 46 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Medical Board for conducting postmortem on the body of deceased Kanu Jat was also not collected from the O/o Secretary Health, Govt. of NCT of Delhi. The CBI further did not look into the stand of the complainant, as depicted in his complaint dated 13.01.2002, made by him to PS Trilokpuri as well as in the Writ Petition filed by him before Hon'ble High Court of Delhi, being WP (Crl.) No.70/2002, wherein he had stated that all the policemen had entered into his house from the main front door and had committed robbery of the valuables and had thrown Kanu Jat from the balcony and then killed him. The .38 revolver recovered from the spot was never investigated by CBI. Kanu Jat was admittedly involved in a number of cases of heinous nature, wherein use of fire arm by him could not be ruled out. Then effort should have been made by CBI to see if the weapon allegedly recovered from the spot was used in any of the cases in which Kanu Jat was an accused. The conduct of IO of CBI is further shrouded in mystery in not citing DCP (East) Shri Manoj Kumar Lal, Shri Kamaljeet Singh and Shri Kamal Sharma as witnesses in the matter, particularly when SP's report submitted to his Excellency, the Lt.Governor of Delhi, seeking sanction for prosecution against the accused persons clearly mentioned their statements. In case the SP concerned was of the opinion that then DCP (East) Shri Manoj Kumar Lal was not a truthful witness or had made an attempt to shield the accused persons, then he should also have been arrayed as an accused, being a coconspirator. From the perusal of the photographs of the spot, it is apparent that a Santro Car was found standing at the spot with rear window panel broken and bullet mark Order on Cognizance ("Cognizance Refused") Page 47 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 thereupon. Why no attempt was made to ascertain as to whether the bullet mark on the said car were from the revolver, allegedly used by Kanu Jat or was it on account of use of fire arm by any of the accused persons. This was a very vital aspect which was left uninvestigated. The CBI further did not investigate as to whether accused persons were not part of team constituted by DCP (East) for collecting evidence in FIR No.18/2002, PS Preet Vihar. Further, record with regard to wireless message record of 11.01.2002 of East District was also not collected from Delhi Police. Further, there is nothing on record that mobile phone allegedly recovered from Kanu Jat was investigated and data contained therein was analysed.
37. The conduct of the Investigating Agency is further not above board in not producing the entire material before this court which was placed before His Excellency, the Lt.Governor of Delhi. From the order dated 03.01.2008, passed by His Excellency, the Lt.Governor of Delhi, it is apparent that His Excellency had entire material before him on the basis of which it was concluded that the acts of accused persons were in discharge of their official duties. It would, therefore, be a debatable point as to whether this court can question the order passed by His Excellency, the Lt.Governor of Delhi in not according sanction for the prosecution of accused persons. I will discuss this aspect a little later, as certain other aspects of investigation noticed by this court also need to be elaborated. The whole strength of arguments of the Ld.PP for CBI and the learned counsel for the complainant, Order on Cognizance ("Cognizance Refused") Page 48 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 if summed up are as under:
(a) The accused persons were not entrusted with the investigation of case FIR No.18/2002 (Ujjagar Singh murder case), PS Preet Vihar;
(b) Accused SI Vinay Tyagi had not received any secret information about the presence of Kanu Jat in B49, Pandav Nagar, Delhi, as the secret information was not reduced into writing by him;
(c) The accused persons had made forcible entry into the house of complainant, had thrown Kanu Jat from the rear side window and had gunned him down, despite he having pleaded for mercy not to kill him;
(d) Accused persons thereafter managed to get the postmortem of Kanu Jat done in Aruna Asif Ali Hospital rather than Lal Bahadur Shastri Hospital;
(e) DCP (East) Shri Manoj Kumar Lal was never informed by the accused persons about the entire operation and he has concocted the story to protect the accused persons;
(f) PWs Shri Kamaljeet Singh and Shri Kamal Sharma are introduced witnesses by the accused persons;Order on Cognizance ("Cognizance Refused") Page 49 of 77
RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
(g) .38 bore revolver concerned was planted upon Kanu Jat as the Dermal Nitrate Test of the material taken from lower and upper parts of his hands does not show any gun powder residue and further the said revolver does not bear finger print marks of Kanu Jat;
(h) The injuries on the body of Kanu Jat, as depicted in the postmortem report support the theory of fake encounter rather then the theory propounded by the accused persons that they had killed him in self defence;
(i) The sanctions U/s 197 Cr.P.C and 140 Delhi Police Act were not required in the matter as it was not the part of duty of the accused persons to kill an innocent person and;
(j) RC No.3(S)/2002/SICIV/ND (in respect of case FIR No.15/2002) was investigated by CBI and Closure Report therein being filed and accepted by this court shows that both the cases, i.e the said case and the present case were the handiwork of concoction by the accused persons.
38. The aforesaid arguments need to be tested on the material available on record and the material which could have been brought on record Order on Cognizance ("Cognizance Refused") Page 50 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 during investigation. Admittedly, the accused persons at the relevant time were posted with Special Staff of DCP (East) and their charter of duties as depicted in Circular No.44/C&T/94/DCP/HQ (II), dated 28.11.1994, included coordination of interrogation of interDistrict, InterState criminals with specialised units of neighbouring States and sharing of the intelligence developed by them with the local Police Stations. It was further their duty to oversee the duty of antiterrorist cell as also to help in investigation of cases which may be entrusted to them by the District DCP as also to see the "public order". They had jurisdiction over the entire East District of Delhi and could go to any PS at any time in relation to duties assigned to them. This is not clear as to why the CBI did not collect the aforesaid Charter of their duties during investigation. Even otherwise, the Sections 149 to 151 Cr.P.C, Section(s) 41, 47 and 46 Cr.P.C give ample power to a policeman to arrest any person against whom a credible information has been received or a reasonable suspicion exists that he had committed a cognizable offence or who had been concerned in any cognizable offences. The only limitation upon this power is not to cause death of any such person who is not accused of offences punishable with death or with imprisonment for life. The power also includes search of place(s) where such person could be found. In this case, SI Vinay Tyagi had received a secret information about the presence of Kanu Jat at B49, Pandav Nagar, Delhi with heavy arms and ammunitions. As per Section 149 Cr.P.C, it was his bounden duty to have detained him from committing any crime. As per Section 150 Cr.P.C, he was required to Order on Cognizance ("Cognizance Refused") Page 51 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 communicate the information in this regard to his superior officers, which he immediately did on phone to DCP (East), who asked him to proceed to the spot and take appropriate steps U/s 151 Cr.P.C. It is not the case that he had made telephone call to DCP (East) under a conspiracy to kill Kanu Jat. There is further no material to presume that he had any kind of animosity with him. In fact, there is no such material to even suggest that he had any occasion to meet him. A perusal of the material further reveals that SI Vinay Tyagi with a view to act promptly in the matter had constituted four teams of his staff and had give them suitable directions as per the credible information which he had about Kanu Jat that he was carrying large ammunition. The team had assembled near Gurudwara Chowk, Pandav Nagar from where he had sent ASI Majid Khan to PS Trilokpuri, so that the local police could be informed. This aspect has not been disputed by CBI, as depicted in SP's report. A perusal of DDs No.27 A and 29 A of PS Trilokpuri further strengthen the stand of the accused persons. Till this time, the intention of the accused persons cannot be doubted. By this time, the accused persons had acted in "good faith" and "purported discharge" of their official duties. The aforesaid two terms require little elaboration.
Good Faith:
39. A public servant is under a moral and legal obligation to perform his duty with truth, honesty, honour, loyality and faith etc. He is to perform his duty according to the expectation of the office and the nature of Order on Cognizance ("Cognizance Refused") Page 52 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 the post for the reason that he is to have a respectful obedience to the law and authority in order to accomplish the duty assigned to him. Good faith has been defined in Section 3(22) of the General Clauses Act, 1897, to mean a thing which is, in fact, done honestly, whether it is done negligently or not. Anything done with due care and attention, which is not malafide, is presumed to have been done in good faith. There should not be personal illwill or malice, no intention to malign and scandalize. Good faith and public good are though the question of fact, it required to be proved by adducing evidence. (Vide: Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu & Ors., AIR 1958 SC 767; Madhav Rao Scindia Bahadur Etc. v. Union of India & Anr., AIR 1971 SC 530; Sewakram Sobhani v. R.K. Karanjiya, Chief Editor, Weekly Blitz & Ors., AIR 1981 SC 1514; Vijay Kumar Rampal & Ors. v. Diwan Devi & Ors., AIR 1985 SC 1669; Deena (Dead) through Lrs. v. Bharat Singh (Dead) through LRs. & Ors., (2002) 6 SCC 336; and Goondla Venkateshwarlu v. State of Andhra Pradesh & Anr., (2008) 9 SCC 613).
40. In "Brijendra Singh v. State of U.P. & Ors.", "AIR 1981 SC 636", the Hon'ble Supreme Court while dealing with the issue held:
".....The expression has several shades of meanings. In the popular sense, the phrase 'in good faith' simply means "honestly, without fraud, collusion, or deceit; really, actually, without pretence Order on Cognizance ("Cognizance Refused") Page 53 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 and without intent to assist or act in furtherance of a fraudulent or otherwise unlawful scheme". (See Words and Phrases, Permanent Edition, Vol. 18A, page 91). Although the meaning of "good faith" may vary in the context of different statutes, subjects and situations, honest intent free from taint of fraud or fraudulent design, is a constant element of its connotation. Even so, the quality and quantity of the honesty requisite for constituting 'good faith' is conditioned by the context and object of the statute in which this term is employed. It is a cardinal canon of construction that an expression which has no uniform, precisely fixed meaning, takes its colour, light and content from the context."
41. For the aforesaid qualities attached to a duty one can attempt to decipher it from a private act which can be secret or mysterious. An authorised act or duty is official and is in connection with authority. Thus, it cannot afford to be something hidden or nontransparent unless such a duty is protected under some law like the Official Secrets Act.
42. Performance of duty acting in good faith either done or purported to be done in the exercise of the powers conferred under the relevant provisions can be protected under the immunity clause or not, is the issue raised. The first point that has to be kept in mind is that such a issue Order on Cognizance ("Cognizance Refused") Page 54 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 raised would be dependent on the facts of each case and cannot be a subject matter of any hypothesis, the reason being, such cases relate to initiation of criminal prosecution against a public official who has done or has purported to do something in exercise of the powers conferred under a statutory provision. The facts of each case are, therefore, necessary to constitute the ingredients of an official act. The act has to be official and not private as it has to be distinguished from the manner in which it has been administered or performed.
43. Then comes the issue of such a duty being performed in good faith. 'Good faith' means that which is founded on genuine belief and commands a loyal performance. The act which proceeds on reliable authority and accepted as truthful is said to be in good faith. It is the opposite of the intention to deceive. A duty performed in good faith is to fulfil a trust reposed in an official and which bears an allegiance to the superior authority. Such a duty should be honest in intention, and sincere in professional execution. It is on the basis of such an assessment that an act can be presumed to be in good faith for which while judging a case the entire material on record has to be assessed.
44. The allegations which are generally made are, that the act was not traceable to any lawful discharge of duty. That by itself would not be sufficient to conclude that the duty was performed in bad faith. It is for this Order on Cognizance ("Cognizance Refused") Page 55 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 reason that the immunity clause is contained in statutory provisions conferring powers on law enforcing authorities. This is to protect them on the presumption that acts performed in good faith are free from malice or illwill. ?The immunity is a kind of freedom conferred on the authority in the form of an exemption while performing or discharging official duties and responsibilities. The act or the duty so performed are such for which an official stands excused by reason of his office or post.
45. It is for this reason that the assessment of a complaint or the facts necessary to grant sanction against immunity that the chain of events has to be looked into to find out as to whether the act is dutiful and in good faith and not maliciously motivated. It is the intention to act which is important.
46. Purport:
Purport means to present, especially deliberately, the appearance of being; profess or claim, often falsely. It means to convey, imply, signify or profess outwardly, often falsely. In other words it means to claim (to be a certain thing, etc.) by manner or appearance; intent to show; to mean; to intend. Purport also means 'alleged'.
'Purporting' - When power is given to do something 'purporting' to have a certain effect, it will seem to prevent objections being urged against the validity of the act which might otherwise be Order on Cognizance ("Cognizance Refused") Page 56 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 raised. Thus when validity is given to anything 'purporting' to be done in pursuance of a power, a thing done under it may have validity though done at a time when the power would not be really exercisable. (Dicker v.
Angerstein, 3 Ch D 600) 'Purporting to be done' - There must be something in the nature of the act that attaches it to his official character. Even if the act is not justified or authorised by law, he will still be purporting to act in the execution of his duty if he acts on a mistaken view of it." So it means that something is deficient or amiss: everything is not as it is intended to be.
In Azimunnissa and Ors. v. The Deputy Custodian, Evacuee Properties, District Deoria and Ors. AIR 1961 SC 365, Constitution Bench of Hon'ble Supreme Court held:
"The word 'purport' has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable.....Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not be so."
(Emphasis added) (Also: Haji Siddik Haji Umar & Ors. v.
Union of India, AIR 1983 SC 259).
Order on Cognizance ("Cognizance Refused") Page 57 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
47. A sudden decision to do something under authority or the purported exercise of such authority may not necessarily be predetermined except for the purpose for which the official proceeds to accomplish. For example, while conducting a raid an official may not have the apprehension of being attacked but while performing his official duty he has to face such a situation at the hands of criminals and unscrupulous persons. The official may in his defence perform a duty which can be on account of some miscalculation or wrong information but such a duty cannot be labelled as an act in bad faith unless it is demonstrated by positive material in particular that the act was tainted by personal motives and was not connected with the discharge of any official duty. Thus, an act which may appear to be wrong or a decision which may appear to be incorrect is not necessarily a malicious act or decision. The presumption of good faith therefore can be dislodged only by cogent and clinching material and so long as such a conclusion is not drawn, a duty in good faith should be presumed to have been done or purported to have been done in exercise of the powers conferred under the statute.
48. There has to be material to attribute or impute an unreasonable motive behind an act to take away the immunity clause. It is for this reason that when the authority empowered to grant sanction is proceeding to exercise its discretion, it has to take into account the material Order on Cognizance ("Cognizance Refused") Page 58 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 facts of the incident complained of before passing an order of granting sanction or else official duty would always be in peril even if performed bonafidely and genuinely.
49. At the spot, the four teams so constituted by SI Vinay Tyagi took their respective positions, as already discussed in the preceding paragraphs. From this point onwards, there are two set of theories about the incident. One set propounded by the complainant and his other family members whereby some of the accused persons had entered from the front door and some had come from the back lane and went straight to the room of Kanu Jat, threw him from the window on the back lane and thereafter gunned him down. Whereas the version of the accused persons is that when the team headed by SI Satish Rana knocked at the main front door, the wooden door was opened but the iron grill was not opened and after coming to know that policemen had come to his house, accused Kanu Jat tried to flee from the backlane. He was carrying a 0.38 bore revolver. He shouted at the police persons in the back lane and opened fire upon them and during the process of firing itself he jumped from the window with a view to escape in the darkness. Accused persons opened fire upon him, as a consequence whereof he died. The history of the weapon, allegedly used by Kanu Jat, which has come on record is that it was well constructed and sophisticated weapon of "Enfield Gun Company" and was one of the revolvers out of consignment which was sent from U.K for Pakistan Army, which had a barrel of 15 cms. It is also Order on Cognizance ("Cognizance Refused") Page 59 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 apparent that it was a costly weapon. As per the version of accused persons, Kanu Jat had fired six rounds from the said revolver. One bullet led was recovered from the spot on which Ballistic Expert had opined that the same was fired from the said gun. The presence of gun shot mark on a vehicle (Santro car), as shown in the pictures of the spot was never investigated by CBI as to whether it was fired from this gun or not. All the six cartridges fired from this gun were recovered from the spot. From the aforesaid material, this court has been called upon to judge as to whether the acts of the accused persons were in discharge of their official duties or not and as to whether the sanction for their prosecution U/s 197 Cr.P.C and Section 140 Delhi Police Act was required or not. A somewhat similar situated was there before the Hon'ble Supreme Court in case reported as, "AIR 2006 SC 1999", titled as, "Sankaran Moitra V/s Sadhna Dass & Anr.", where also there were two different versions with regard to death of husband of complainant. The Hon'ble Supreme Court in that case, after considering the relevant case law at length concluded as under:
xxxxx
71. Coming to the facts of this case, the question is whether the appellant was acting in his official capacity while the alleged offence was committed or was performing a duty in his capacity as a police officer which led to the offence complained of. That it was the day of election to the State Assembly, that the Order on Cognizance ("Cognizance Refused") Page 60 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 appellant was in uniform; that the appellant travelled in an official jeep to the spot, near a polling booth and the offence was committed while he was on the spot, may not by themselves attract Section 197 (1) of the Code. But, as can be seen from the facts disclosed in the counter affidavit filed on behalf of the State based on the entries in the General Diary of the Phoolbagan Police Station, it emerges that on the election day information was received in the Police Station at 1400 hours of some disturbance at a polling booth, that it took a violent turn and clashes between the supporters of two political parties was imminent. It was then that the appellant reached the site of the incident in his official vehicle. It is seen that a case had been registered on the basis of the incidents that took place and a report in this behalf had also been sent to the superiors by the Station House Officer. It is also seen and it is supported by the witnesses examined by the Chief Judicial Magistrate while taking cognizance of the offence that the appellant on reaching the spot had a discussion with the Officerin charge who was stationed at the spot and thereafter a lathi charge took place or there was an attack on the husband of the complainant and he met with his death.
Obviously, it was part of the duty of the appellant to prevent any breach of law and maintain order on the polling day or to Order on Cognizance ("Cognizance Refused") Page 61 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore emerges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also to be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for illtreatment and he was beaten up by a police constable at the instance of the appellant and the Officerin charge of the Phoolbagan Police Station and at their behest. If that complaint were true it will certainly make the action, an offence, leading to further consequences. It is also true as pointed out by the learned counsel for the complainant that the entries in the General Diary remain to be proved. But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract Section 197 of the Code. Going by the principle, stated by the Constitution Bench in Matajog Dobey (supra), it has to be held that a sanction under Section 197 (1) of the Code of Criminal Procedure is necessary in this case.
71A. We may in this context notice the decision in Rizwan Ahmed Javed Shaikh and Ors. v. Jammal Patel and Ors. [(2001) 5 SCC 7). This Court was dealing with Order on Cognizance ("Cognizance Refused") Page 62 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 officers who were brought within the protective umbrella of Section 197 of the Code by a notification issued under Section 197(3) thereof. Cognizance had been taken of an offence under Sections 220 and 342 of the Indian Penal Code and Sections 147 and 148 of the Bombay Police Act. The gravamen of the charge was the failure on the part of the accused police officers to produce the complainants before a magistrate within 24 hrs. of their arrest for alleged offences under the Indian Penal Code. The police officers having claimed the protection of Section 197(1) of the Code, this Court after referring to the earlier decisions held"
"The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected."
72. Going by the above test it has to be Order on Cognizance ("Cognizance Refused") Page 63 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 held that Section 197(1) of the Code is attracted to this case.
73. The High Court has stated that killing of a person by use of excessive force could never be performance of duty.
It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the Order on Cognizance ("Cognizance Refused") Page 64 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage.
It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction.
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50. Here, in this case also, the act of the accused persons in going to B49, Pandav Nagar, Delhi, pursuant to a credible information about Kanu Jat, who was wanted in a number of heinous criminal cases of UP and pursuant to the telephonic directions received from their superior officer namely DCP Shri Manoj Kumar Lal on the face of it appear to be in discharge/purported discharge of their official duties of accused persons. Their aforesaid act is duly corroborated from the relevant entries made at the O/o Special Staff, PS Trilokpuri and the statements U/s 161 Cr.P.C of DCP (East) Shri Manoj Kumar Lal. Their version is further corroborated from the Call Detail Records (CDRs) of the mobile numbers of SI Vinay Tyagi, DCP (East) Shri Order on Cognizance ("Cognizance Refused") Page 65 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Manoj Kumar Lal and landline number of Shri Kamaljeet. There is another angle from which the matter could be seen, i.e had the accused persons not acted pursuant to the receipt of credible information and had not gone to arrest Kanu Jat, then whether they would have made themselves liable for a charge of dereliction of their duties, particularly when the said information had already been shared by SI Vinay Tyagi with DCP (East) Shri Manoj Kumar Lal. The answer has to be "Yes" in view of Ganesh Chandra Jew's (supra) case. Had Kanu Jat been able to give the accused persons a slip from the spot, then also they would have made themselves liable for a charge of dereliction of duty.
51. This leads us to a further important question of law as to what kind of interpretation is supposed to be given to the acts of accused persons once it is found that their going to the spot was in discharge of their official duties, but there they killed Kanu Jat. Here the guiding force is the judgment of Hon'ble Supreme Court in case reported as, "AIR 2007 SC 1274", titled as, "Prakash Singh Badal & Anr. V/s State of Punjab & Ors.". The relevant observation is as under.
xxxxx "...Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in Order on Cognizance ("Cognizance Refused") Page 66 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned......"
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52. Now, we reach to a stage where another important question of law arises as to whether once the competent authority having applied its mind and found the acts of accused persons to be in discharge of their official duties and refused sanction, can this court take a contrary view in the absence of any material in respect thereof. The legal position discussed above on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of Order on Cognizance ("Cognizance Refused") Page 67 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 the public servant can be shown to have reasonable connection inter relationship or inseparably connected with discharge of his duty, he becomes entitled for protection of sanction. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void abinitio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the 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. The Legislature has conferred "absolute power" on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority.
53. In case reported as, "JT 2009 (13) SC Page 180", titled as, "State of Punjab & Anr. V/s Mohd. Iqbal Bhatti", the mandate of the Hon'ble Supreme Court, as contained in paragraphs 6 & 7 of the aforesaid judgment is as under:
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6. The respondent is a public servant.
The Governor of the State of Punjab is his appointing authority. He is, therefore, not Order on Cognizance ("Cognizance Refused") Page 68 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 removable from his office save by and with the sanction of the Government and in that view of the matter if he is accused in any offence alleged to have been committed by him while acting or purporting to act in discharging of his official duty, grant of prior sanction is imperative in character in terms of section 197 of the Code of Criminal Procedure, 1973. The power of the State, as is well known, is performed by an executive authority authorized in this behalf in terms of the Rules 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 thereof. Once a sanction is refused to be granted, no appeal lies there against.
7. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again.
For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be Order on Cognizance ("Cognizance Refused") Page 69 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 subject to review by the criminal courts.
An order refusing to grant sanction may attract judicial review by the Superior Courts. Validity of an order or sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidences may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the Superior Courts cannot direct the sanctioning authority to grant sanction or not to do so. The source of power of an authority passing an order or sanction must also be considered.
[Mansukhlal Vithaldas Chauhan V/s State of Gujarat (1997) 3 SCC 622].
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54. In case reported as, "1995 Cr.LJ Page 3380 (Madras)", titled as, "Dr.Subramaniam Swamy V/s Deciding Authority & Ors.", the Hon'ble Order on Cognizance ("Cognizance Refused") Page 70 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Madras High Court has been pleased to hold as under:
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3. After giving my careful consideration to the rival submissions, I have absolutely no doubt in my mind that the judgment of this Court in Dravida Munnetra Kazhagam, etc. v. The Governor of Tamil Nadu (1994) I Mad LW 145 is squarely applicable to the facts of the present case. In the said judgment the Division Bench was concerned with an order of the Governor rejecting the request for sanction to prosecute the Chief Minister under Section 197 Criminalk Procedure Code and the Section 19 of Prevention of Corruption Act, 1988. The only difference in this case is that the Governor has not passed any orders on the complaint made by the petitioner on 2111993. As rightly pointed out by Shri K. Parasaran, whether the Governor has passed an order or has not passed any orders, the ratio is the same, namely, the Governor cannot be called into question on his silence over the matter. It is open to the Governor to exercise his power and perform his duties in any particular manner. Article 361(1) of the Constitution of India says that he "shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any Order on Cognizance ("Cognizance Refused") Page 71 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 act done or purporting to be done by him in the exercise and performance of those powers and duties. " I have already indicated that the distinction sought to be raised by the petitioner by referring to the Governor as the Deciding Authority is not based on any legal foundation. As rightly pointed out by the respondents there is no such an authority as the Deciding Authority in the Prevention of Corruption Act. The Division Bench has elaborately considered all the relevant authorities on the subject and has given a clear and cogent verdict on the issue. In my opinion, it is be a judicial waste of time to go through the exercise once over again. The verdict of the Division Bench is as foolows: "In the result, the present petition which impleads the Governor of Tamil Nadu as a party and seeks the issue of a writ as against him besides quashing of the order is not maintainable. Consequently, the writ petition is dismissed as not maintainable".
I will only refer to the arguments of the petitioner to distinguish his case from the said judgment. The first reference is to Naa Pepople's Movement for Human Rights v. Union of India, AIR 1990 Gauhati
1. that case related to the power of the Governor exercised under Section 3 of the Order on Cognizance ("Cognizance Refused") Page 72 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 Armed Forces (Special Power) Act, 1958, declaring certain Districts as disturbed area. The Court only held that the validity of the declaration could be decided without the Governor as a party to the case. The Court found that the correctness of the declaration could be ascertained from the materials to be supplied by the State Government. Therefore, they directed the deletion of the Governor from the array of parties. I do not see how this judgment will help the petitioner. The Gauhati High Court itself points out the following three kinds of act which are performed by a Governor and under what circumstances immunity can be claimed under Article 361 of the Constitution of India and whether such immunity cannot be claimed. The following passage is apposite at page 6 of AIR.
" Thus, we find three kinds of acts that may be performed by the Governor in exercise of his powers. First, the powers exercised or acts performed with the aid and advice of the Council of Ministers. Second, those powers exercised or acts performed in exercise of his discretion. Third, those which he may exercise being the exofficio head of any institution, e.g, the University of which the Governor is the Chancellor. It has been held in a number of cases that when the Governor acts as the Ex officio head of such an institution he cannot claim Order on Cognizance ("Cognizance Refused") Page 73 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 immunity under Art. 361 because he exercises a special power and he is not required to act with the aid and advice of the Council of Minister".
xxxxx Therefore, if the law laid down in the aforesaid authorities is applied to the facts of the present case, then it would be apparent that the CBI has not been able to establish anything on record to hold that His Excellency, the Lt. Governor of Delhi did not apply mind to the facts and circumstances of the present case or that the entire material relevant to this case was not placed before His Excellency, the Lt. Governor of Delhi when he refused sanction for the prosecution of the accused persons.
55. On the other hand, Ld.PP for CBI placed reliance on the judgment reported as, "2011(7) SCC Page 167", titled as, "Chittaranjan Dass V/s State of Orissa" to show that seeking sanction for the prosecution of accused persons from the competent authority on the part of CBI was not necessary and it was an exercise in futility and that the Hon' ble High Court itself should have been pleased to decide the issue of cognizance and should not have remanded the matter back to this court. I have gone through the aforesaid judgment. The aforesaid judgment is not applicable to the facts and circumstances of the present case as the issue in the aforesaid case was that before the accused in the said matter, who was a public servant, superannuated, sanction for his prosecution was sought from the competent Order on Cognizance ("Cognizance Refused") Page 74 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 authority, which was denied and after his retirement when there was no requirement for obtaining sanction for his prosecution, the sanction was again sought which was again not granted by the competent authority. In these facts, the Hon'ble Supreme Court was pleased to hold that when the competent authority denied the sanction while public servant was in service, subsequently the public servant cannot be prosecuted after retirement despite fact that no sanction is necessary under Prevention of Corruption Act. Even reliance of the Ld.PP for CBI on judgment reported as, "2008 Cr.LJ 360", titled as, "M.C Mehta V/s Union of India & Ors." (Taj Heritage Corridor Project Case) is misplaced, as in the said judgment the Hon'ble Supreme Court refused to set aside the order of the Governor of Uttar Pradesh in not granting sanction for the prosecution of Ms.Mayawati and Mr.Nasimuddin Siddiqui on the ground that the same cannot be done in exercise of Writ Jurisdiction and it was for the competent court dealing with the cases as per law to deal with the same.
56. On the other hand, the learned counsel for the complainant relied upon the following judgments:
(a) 2007 Cr.LJ 4481 (Gujarat High Court), titled as, "G.V Chaudhary & Anr. V/s State of Gujarat";
(b) 1970 Cr.LJ 1401, titled as, "B.P Srivastav V/s N.P Mishra";
(c) 1970 Cr.L.J 1401, titled as, "P.K Pradhan V/s State of Sikkim";Order on Cognizance ("Cognizance Refused") Page 75 of 77
RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012
(d) 2007 Cr.LJ 4641 (Bombay High Court), titled as, "Nand Kumar S. Sale V/s Bhavrao Chanderbhanji Tirke";
(e) AIR 1988 SC Page 257, titled as, "Bakshi Singh Brar V/s Smt.Gurmej Kaur & Anr.";
(f) AIR 1998 SC 1524, titled as, "Suresh Kumar Bhikam Chand Jain V/s Pandey Ajay Bhushan" and;
(g) AIR 1979 SC 1841, titled as, "S.B Saha & Ors. V/s M.S Kochar".
I have gone through the aforesaid judgments. The law laid down in the aforesaid judgments has already been considered by the Hon'ble Supreme Court in "Sankaran Moitra's" case (supra) and there is no need to make further reference thereto.
57. In a recent judgment of the Hon'ble Supreme Court rendered on 01.05.2012 in Criminal Appeal No.257/11 and Criminal Appeal No.155/06, by way of common judgment in case titled as, "Additional Director General V/s CBI", the Hon'ble Supreme Court after considering almost entire case law on the subject in a case involving facts similar to the facts of the present case concluded that the facts of the case require sanction of the appropriate authority to proceed with the criminal prosecution before instituting prosecution against accused persons in the said case.
58. Although lengthy arguments on facts, as detailed in some of the preceding paragraphs were advanced from both the sides with regard to Order on Cognizance ("Cognizance Refused") Page 76 of 77 RC2(S)/2002: "CBI V/s SI Vinay Tyagi & Ors." Date of Order: 24.05.2012 statements of witnesses and the documents on record, yet this court would not like to meticulously examine the said statements and material and the contradictions therein as the same is not warranted, particularly when it has been cogently established through the sequence of events that the accused persons had acted in discharge/purported discharge of their statutory duties and as such, the acts/offences complained off against them were in discharge of their official duties, which warranted grant of sanction for their prosecution by the competent authority, i.e His Excellency, the Lt. Governor of Delhi. The CBI has not been able to raise any question mark about the conduct of His Excellency, the Lt. Governor of Delhi that the entire material was not considered by him before refusing to grant sanction for the prosecution of the accused persons. Therefore, this court is of the considered opinion that the cognizance against the accused persons in this case cannot be taken. They are accordingly discharged from this case. As such, Cancellation Report filed by CBI in the matter is hereby accepted, whereas Protest Petition filed by complainant stands dismissed. Their Bail Bonds which are there on record stand cancelled; their sureties stand discharged. Endorsements, if any, either on the documents of surety(ies) or of accused persons be cancelled forthwith. File be consigned to Record Room after completion of necessary formalities.
Announced in the open court (Vinod Yadav)
on 24.05.2012 Chief Metropolitan Magistrate:
Delhi
Order on Cognizance ("Cognizance Refused") Page 77 of 77