Allahabad High Court
Avinash Mishra vs State Of U.P. And Others on 20 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 260
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 10.1.2020 Judgment delivered on 20.2.2020 Court No. - 69 Case :- APPLICATION U/S 482 No. - 6939 of 2006 Applicant :- Avinash Mishra Opposite Party :- State of U.P. and Others Counsel for Applicant :- Vinay Saran, ,Nandit K. Srivastava,Prashant Shukla,Raghav Dev Garg,Vinay Saran Counsel for Opposite Party :- Govt. Advocate,Anurag Khanna,Gyan Prakas,Nazrul Islam Jafri Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Nandit K. Srivastava, learned Senior Counsel assisted by Sri Prashant Shukla, learned counsel for the applicant and Sri Gyan Prakash, learned Senior Counsel assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I.
2. This present application has been filed with a prayer to quash the order dated 26.4.2006 passed by Special Chief Judicial Magistrate (CBI) Ghaziabad in Case No. 3140 of 2005, under Section 364, 120B, 302, 201, 220 IPC, P.S. Medical, District, Meerut.
3. As per F.I.R., the prosecution version is that on 26.2.1994, at about 10:15 O' clock, informant- Krishnapal Singh was going to Shastri Nagar on scooter and when he reached near supply depot at about 10:30 O' clock where existed a speed breaker he slowed down his scooter then all of a sudden two men stopped him showing a country made pistol and snatched away his scooter and fled towards Commissioner Chauraha, right then police of P.S. Lal Kurti reached there and he (informant) told them that two miscreants had fled from there after having snatched his scooter and thereafter they gave a chase to the miscreants. The registration number of scooter of the informant was DL3SC0326. He had borrowed the said scooter from one of his friends and that he could recognize the miscreants. The case crime no. 64 of 1994, under Section 392 was registered against two unknown persons.
4. On the same day, another F.I.R. was lodged being crime no. 82 of 94, under Section 307 and 412 IPC, P.S. Medical College, in which Station Officer- Avinash Mishra along with his team mates had proceeded in search of the accused persons. When he was in Tajgarh at about 10:35 pm, on 26.2.1994 he received an information from control room on RT Set that two miscreants had snatched scooter no. DL 3 SC 0326 from a person near supply depot, P.S. Lal Kurti, Meerut and had turned towards jail chungi and that the Inspector- Lal Kurti was following them. Upon this information, he proceeded on a Government Jeep in search of the miscreants and when reached near road bend towards Samrat Palace he saw the scooter bearing no. DL 3 SC 0326 coming from the side of jail Chungi which took turn towards Samrat Palace. His police team followed scooter, at that time, Shyam Lal Kashyap, S.O., Nauchandi was coming from the side of Samrat Palace. Having seen his vehicle, at about 10:30 pm, the miscreants turned towards his side (side of the S.O. Avinash Mishra) and when they found themselves surrounded, they fired upon them/police with an intent to kill. The police team challenged the miscreants and thereafter the miscreants having left the scooter on rough land, on the side of the road, made fires upon the police personnel. Thereafter the police challenged them that they were surrounded by the police and that they should throw their arms and surrender. Several round of fires were made by the police personnel in their defence in which one of the miscreants (unknown) died on the spot and the other succeeded in fleeing away taking benefit of cover of darkness. He was given chase by S.I., Mahesh Chauhan, S.O. Nauchandi and Constable 583 Harendra but could not be apprehended. The scooter was lying there which was looted from the area of P.S., Lal Kurti. The dead body of the unknown miscreant, who was having ammunition near his right hand and empty cartridges as well as looted scooter, were lying on the spot. In this encounter, the empty cartridges used by the police personnel of 38 bore and two empty cartridges fired by the Inspector in-charge P.S. Lal Kurti and by Station in-charge Nauchandi of 38 bore and empty cartridges fired by S.S.I., Sanjay Sirohi of 38 bore and two empty cartridges of 38 bore fired by S.I. Mahesh Chauhan had been brought by him (Avinash Mishra), which were deposited in sealed condition with specimen seal. No police personnel was injured in this encounter.
5. Thereafter on 22.12.1995, an F.I.R. was registered against the applicant, details of which are that a Writ Petition (Crl.) No. 93 of 1994 was filed before the Hon'ble Supreme Court of India by Smt. Munni Devi, wife of Om Prakash Maheshwari alleging therein that her son Gopal Maheshwari and his maternal uncle Suresh Chandra were illegally taken away in the morning on 25.2.1994 by U.P. Police from the house of Suresh Chandra of Mohalla, Jai Jairam, Kasganj and she apprehended fake encounter and liquidation of Gopal Maheshwari by police. The Hon'ble Supreme Court directed that the District and Sessions Judge, Meerut shall conduct an inquiry and submit his report within three months, which was submitted on 14.12.1995 before the Hon'ble Apex Court and gist of the said report was as follows. Gopal Maheshwari and Suresh Chandra were picked up by Meerut police (Avinash Mishra, applicant, the then S.O., P.S. Medical College, Meerut, Sanjay Sirohi, Chandra Pal Singh, Mahesh Singh, companion police officials) from the house of Suresh Chandra in Kasganj in the intervening night of 24/25.2.1994 and he was brought to Meerut. Suresh Chandra was locked in the room of first floor of P.S. Medical College, Meerut and Gopal Maheshwari was whisked away to an unknown destination but later on he was killed in the night of 26/27.2.1994 by the accused-applicant along with other named co-accused and some other persons in custody. A fake encounter was shown by local police in the case with a view to liquidate Gopal Maheshwari putting up a theory of looting a scooter by Gopal Maheshwari and subsequently encounter was fabricated by police in conspiracy with Krishnapal Singh, a private person. The identity of the deceased Gopal Maheshwari was known to the accused persons including applicant and deliberately they did not disclose it to the Prabhat Kumar Sharma (City Magistrate, Meerut), who prepared panchayatnama of the dead body and the dead body of the deceased was deliberately cremated as unclaimed. The Hon'ble Supreme Court vide order dated 15.12.1995 directed further investigation to be made in this matter by C.B.I., hence the case was registered under Sections 120B, 302, 201, 218 IPC against above named accused persons which includes applicant and regular case was registered and investigation was entrusted to Kishore Kumar, Deputy S.P., C.B.I., SIC-IV, New Delhi for investigation.
6. After investigation into this case, charge sheet was submitted on 6.12.2000 against the accused-applicant mentioning therein that deceased Gopal Maheshwari and Suresh Chandra were picked up by Meerut Police along with accused-applicant and other co-accused from the house of Suresh Chandra in Kasganj in the intervening night of 25.2.1994 and were brought to Meerut. Suresh Chandra was locked up in a room on the first floor of the P.S. while the deceased Gopal Maheshwari was taken away to an unknown destination but later on he was killed in the intervening night of 26/27.2.1994 by applicant and other co-accused, while he was in custody. A fake encounter was shown by the applicant in order to liquidate the deceased putting up a theory of looting of a scooter by the deceased and subsequently encounter was fabricated by police in conspiracy with co-accused Krishnapal Singh. The identity of the deceased was known to the applicant and his teammates but they concealed the same and did not disclose it to Prabhat Kumar Sharma, Additional City Magistrate, Meerut who prepared panchayatnama and cremated the dead body as unclaimed. Thereafter the Apex Court passed order dated 15.12.1995 directing C.B.I. to investigate the matter. It was further found in the investigation that Om Prakash Maheshwari was living with his family in his house at 33 Hari Nagar in Meerut in February 1994, who was a broker in Sarrafa market and his son Gopal Maheshwari (deceased) was also working with him and was a Meena Artisan. The deceased some time in January, 1994 reached Kasganj, District Etah and started living and working there with his maternal uncle Suresh Chandra due to constant harassment by Meerut Police to involve him in a cases falsely. It also emerged in the investigation that applicant along with other co-accused named above entered into a criminal conspiracy during the period 1994 in Meerut to eliminate the deceased by making a fake police encounter at Meerut on 26.2.1994 and causing disappearance of evidence to cover up the theory of fake encounter. In pursuance of the said conspiracy, the accused applicant along with co-accused fabricated the theory of police encounter that constable Lalit Kumar of P.S. Medical College, while he was on patrol duty, died in a road accident on 11.2.1994 and his service rifle went missing with regard to which a case crime no. 63 of 1994, under Section 279, 304-A, 427, 379 IPC was registered at P.S. Medical College on 12.2.1994 against unknown. Accused applicant Avinash Mishra was the I.O. of the said case. An anonymous letter was received disclosing availability of the aforesaid missing service rifle in the house of Suresh Chandra of Kasganj, which was endorsed by Sri Shiv Sagar Singh, C.O. Civil Lines, Meerut on 21.2.1994 to the accused-applicant to enquire and report. The accused-applicant and other co-accused left the Police Station, Medical College vide G.D. entry no. 49 at 8:30 pm on 24.2.1994 and reached Kasganj from Meerut by Maruti Car No. dDQ 8590 at about 3:15 am on 25.2.1994 for investigation of the aforesaid case for recovery of the missing service rifle. The accused applicant and other teammates took assistance of S.I. Bahadur Ali, Constables Ramesh Chandra and Shiv Shankar Mishra of P.S. Kasganj. Thereafter the applicant and other teammates reached house of Suresh Chandra (maternal uncle of the deceased) in Mohalla Jaijai Ram, Kasganj for recovery of the said missing rifle. The search of his house was made but nothing was recovered. The applicant and co-accused picked up Suresh Chandra and deceased Gopal Maheshwari (as he were already available there) under the garb of investigation/interrogation. The applicant along with Suresh Chandra and Gopal Maheshwari, SI Bahadur Ali and two constables Ramesh Chandra and Shiv Shankar Mishra came back to the P.S. Kasganj, there S.I. Bahadur Ali took accused-applicant to C.O. ML Ghai. The applicant informed M.L. Ghai that he was taking two persons namely, Suresh Chandra and deceased Gopal Maheshwari for the purposes of interrogation. S.I. Bahadur Ali also informed this fact to Govind Singh, S.O. P.S. Kasganj that the accused-applicant had taken away the aforesaid two persons in custody. The S.I. Bahadur Ali and two other Constables Ramesh Chandra and Shiv Shankar Mishra on seeing the photograph of Gopal Maheshwari (deceased) confirmed that the said deceased was picked up by the applicant along with other co-accused from the house of Suresh Chandra, Mohalla Jaijai Ram, Kasganj in the early morning of 25.2.1994. Thereafter applicant and other co-accused returned to P.S. Medical College, Meerut by the said Maruti car. Suresh Chandra was locked in a room of the first floor of P.S. Medical College, Meerut and deceased Gopal Maheshwari was taken away to an unknown destination and later on Suresh Chandra was released on 26/27.2.1994. Further it is revealed in investigation that accused Krishnapal Singh took Bajaj scooter bearing no. DL 3 SC 0326 from Manoj kumar Mishra at about 9:30 pm on 26.2.1994, whereby he was going to meet his friend Harendra Pal Singh in Meerut for taking some money from him as Krishnapal Singh was doing business of supply of Video Cassetes to various shopkeepers including the Manoj Kumar Mishra. On way to Shashtrinagar, Meerut, he slowed down his scooter due to speed beaker on Mall Road near supply depot at about 10:30 pm on 26.2.1994 and it was then that two miscreants, one having country made pistol, snatched his scooter at pistol point and then both ran away towards commissioner Chauraha. The investigation further discloses that accused- Om Pal Singh along with Sanjay Sirohi reached the place where scooter was looted, immediately by police jeep URI No. 7794. Accused Krishnapal Singh reported accused Om Pal Singh and others about the incident of loot then and there. Krishnapal Singh also pointed out towards the scooter which was being taken away by two miscreants towards commissioner Chauraha, The accused Om Pal Singh directed Krishnapal Singh for lodging a case of loot of scooter at P.S. Lalkurti, Meerut, which was lodged as crime no. 64 of 1994, under Section 392 IPC, against two unknown persons. Further it has come in the investigation that accused- Inspector Om Pal Singh flashed the message on R.T. Set about the incident of loot and chased miscreants along with Sanjay Sirohi and others by police vehicle. Two miscreants along with looted scooter were fleeing towards commissioner chauraha. The accused Om Pal Singh and Sanjay Sirohi were armed with service revolvers. Two miscreants reached Samrat Palace under P.S. Medical College, in open field where scooter skidded and fell. On receipt of the message on R.T. Set, accused Avinash Mishra along with accused Mahesh Kumar Singh, accused Chandra Pal Singh and others and also accused Shyam Lal Kashyap reached Samrat Palace. The accused-applicant along with other accused were armed with service revolvers. The accused inspector Om Pal Singh also chased the miscreants and reached Samrat Palace. Two miscreants started firing upon the police. Finding no way, the aforesaid accused made 12 rounds of fire from their service revolvers and in this cross fire, one miscreant had killed, while other escaped. Out of 12 rounds, the accused Om Pal Singh fired one round, accused Mahesh Singh fired two rounds, while accused-applicant fired four rounds, accused Sanjay Sirohi fired four rounds and Shyam Lal Kashyap fired one round from their service revolvers. The miscreant (Gopal Maheshwari) was thus killed in police encounter, whereas the other miscreant managed to escape. Many other senior police officials also reached the spot on receipt of message of encounter.
7. The case crime no. 82 of 1994, under section 307, 412 IPC being crime no. 83 of 1994, under Sections 25 Arms Act was registered on 26.2.1994 against two unknown at P.S. Medical College on a written report of applicant and investigation was taken up by Ramker Singh, Inspector Civil Lines, Meerut. Further it has come in investigation that Sri Prabhat Kumar Sharma, Additional City Magistrate conducted Panchayatnama on 26/27.2.1994 of the deceased as an unidentified person of 25 years of age and articles recovered from him were also noted, which are detailed in the said investigation report. Further it has come in investigation that unidentified deceased (Gopal Maheshwari) had received three injuries caused by bullets. Dr. Vinod Kumar Gupta, Reserve Duty Medical Officer, Medical College, Meerut conducted post-mortem report of the deceased as an unidentified man and recorded his cause of death to be shock and hemorrhage due to injuries sustained and also recovered three bullets from the body of the deceased and thereafter the body of the deceased was cremated as unidentified/unclaimed. The accused Om Pal Singh mentioned fact of encounter in G.D. No. 4, dated 27.2.1994 at P.S. Lal Kurti and accused Shyam Lal Kashyap recorded the said fact in G.D. of P.S. Nauchandi at serial no. 36 of 27.2.1994. The accused applicant sealed 12 empties fired by the accused persons and prepared its recovery memo dated 26.2.1994. Subsequently, looted scooter was received back by the accused Krishnapal Singh, who identified the dead miscreant as the same person on the spot, who was one of the two scooter snatchers. Subsequently, the investigation of crime no. 82 and 83/1994, under Section 307/412 and 25-A Arms Act were taken by Sri Raghunath Shukla, Inspector,C.B.C.I.D., Meerut, under the order of Government of U.P. and he submitted final report no. 47, dated 21.12.1995, in the court of ACJM-VI, Meerut recommending closure of the both the said crime numbers and got registered a case under Section 302, 342, 346, 347, 364, 216, 217, 182, 201, 323, 193, 197, 198, 203, 211 and 120B IPC against the accused applicant and others for killing the deceased Gopal Maheshwari in a fake encounter at P.S., Medical College. With a view to proving false presence of the deceased within District Meerut, accused Pratap Singh got registered crime no. 49 of 1994, under section 504, 506 IPC, P.S. Bhasuna, District Meerut on 25.2.1994 against deceased Gopal Maheshari and his brother in pursuance to well planned conspiracy. Further more accused persons managed the surrender application in the name of Gopal Maheshwari in the court of ACJM-4, Meerut on 25.2.1994 in some case falsely. It was also motivated attempt to prove the physical presence of deceased Gopal Maheshwari in Meerut on 25.2.1994. During investigation by C.B.I., the theory of police encounter was found to be absolutely false and concocted by the accused persons and so was the case of surrender application under Section 504 and 506 IPC as mentioned above. Investigation also discloses that on 25.2.1994, Vishnu Kumar sent a telegram to the Hon'ble Chief Justice of India, New Delhi mentioning that Suresh Chandra and Gopal Maheshwari (deceased) had been brought to Meerut, at about 4:00 am on 25.2.1994 from Kasganj for killing them in a fake encounter. Another telegram was also sent to S.S.P., Meerut by Rakesh on 25.2.1994 to the effect that Meerut Police had brought Gopal Maheshwari from Kashganj for fake encounter. Further investigation revealed that Gopal Maheshwari (deceased) was known from before to the accused-applicant and other co-accused, who got his body cremated as unidentified with ulterior motive. Further there was found no speed beaker on the Mall Road on 26.2.1994. Further it has come in investigation that accompanying other police men were not associated with the accused persons at the time of encounter and that the accused-applicant, co-accused Sanjay Sirohi, Mahesh Singh and Chandra Pal Singh kidnapped the deceased Gopal Maheshwari from Kasganj on 25.2.1994, hence they committed offence under Section 364 IPC and thereafter accused-applicant, Sanjay Sirohi, Mahesh Singh, Chandra Pal Sing, Om Pal Singh, Shyam Lal Kashyap committed his murder on 26.2.1994 and caused disappearance of evidence and fabricated a false police encounter case in conspiracy with co-accused Krishnapal Singh and thus they committed offence under Section 120-B IPC read with Section 302, 201, 220 IPC and substantive offences thereof. Accused- Pratap Singh lodged false crime no. 49 of 1994, under Section 504 and 506 IPC at P.S. Bahsuma, Meerut on 24.2.1994 against deceased Gopal Maheshwari and his brother, whereas deceased was in illegal custody of the aforesaid accused and thus he has committed an offence under Section 201 IPC. Further it is mentioned in the charge sheet that Government of U.P. was requested on 5.4.2019 for according sanction for prosecution against aforesaid accused persons but the same was still awaited. The officers of the C.B.I. of the level of D.S.P., S.P. and D.I.G. pursued matter at various levels including Chief Secretary and many reminders were also issued to the Government and ultimately court was pleased to issue direction to the State Government on 12.7.2001 through Chief Secretary to expedite taking decision to accord sanction for prosecution within 60 days. Government did not respond and then the court issued reminder on 8.11.2001 to the Chief Secretary of U.P. for compliance of the order dated 12.7.2001 of the court. In spite of directions of the court, sanction had yet not been issued by the State Government and prayer was made that cognizance of the offences may be taken against accused persons and they be summoned and be put to trial according to law.
8. The submission made by the learned counsel for the applicant is that admittedly charge sheet was filed on 6.12.2001 awaiting sanction from the State Government, thereafter the case was numbered as 1419 of 2001 in the court of Special Chief Judicial Magistrate (CBI, Dehradun) and applicant was summoned vide order dated 13.8.2002. Prior to the order dated 13.8.2002, the State Government vide its order dated 24.7.2002 refused to grant sanction for prosecution of the applicant and copy thereof was forwarded to DIG (CBI) SIC-IV New Delhi, for appropriate action at their end, which is annexed at annexure- 5 but for the reasons best known to the prosecuting agency despite the official communication of the said order of the State Government dated 24.7.2002 refusing the grant of sanction, the same was never placed before Special Chief Judicial Magistrate (CBI), Dehradun, who has summoned the applicant vide order dated 13.8.2002. The applicant was also not informed about the said order regarding refusing of sanction. Therefore left with no option, the applicant challenged the order dated 13.8.2002 passed in case no. 1419 of 2001 by the Special Chief Judicial Magistrate, CBI, in Crl. Revision No. 94 of 2002 before Additional Sessions Judge/FTC- First Dehradun, stating therein that the applicant could not have been prosecuted without proper sanction. Vide judgment and order dated 17.9.2003, the revisional court allowed the revision and set aside the order dated 13.8.2002 of Special Chief Judicial Magistrate, CBI, Dehradun. Further it is argued that refusal of sanction was deliberately concealed by the prosecuting agency, both at the time of passing summoning order dated 13.8.2002 and at the time of arguments in criminal revision no. 94 of 2002. The revisional court while allowing the revision observed that in case the sanction for prosecution by the State Government is granted in future, the matter would again revive and thereafter the matter was consigned. The prosecuting agency thereafter clandestinely pursued the matter at the State level and concealed the facts that previously after examining the entire matter, State of U.P. vide order dated 24.7.2002 had refused the sanction to prosecute the applicant and that the summoning order was set aside. It is further submitted that it is apparent that the State thereafter without even going through the record of the case, vide order dated 15.7.2005 accorded sanction for prosecution of the applicant, which is annexure-7 to the application. Immediately thereafter an application was moved by the learned counsel for the C.B.I. before J.M., C.B.I., Dehradun to reopen the matter in the light of subsequent sanction order dated 15.7.2005. The learned Judicial Magistrate, C.B.I., thereafter on the said application, directed that the record be sent to the competent court having jurisdiction in the light of order passed by Uttranchal High Court after creation of new State of Uttaranchal, true copy of the order dated 13.9.2005 is annexure-8 to the application. Thereafter the matter was sent to the court of C.J.M., CBI, Ghaziabad who after going through the record took cognizance and summoned the accused vide order dated 26.4.2006, which is annexed at annexure-9. The said order is bad in law as the same is based on an order which has been obtained by concealment of material facts. No fresh reason have been assigned by the State while deviating from its earlier order dated 24.7.2002. The applicant is a Government servant and due to false implication, his entire career is at stake and he got the knowledge of the summoning order dated 26.4.2006 on 16.6.2006 and the same is nothing but an abuse of process of court therefore the same needs to be quashed.
9. Learned counsel for the applicant has placed reliance upon State of Himachal Pradesh, 2010 (14) SCC 527, in which Hon'ble Apex Court has dealt with power of the Government to review its order granting or refusing sanction to prosecute. In this case, respondent was said to have been caught red-handed accepting bribe from the complainant; upon completion of the investigation, vigilance Department sought sanction under Section 19 from Government to prosecute respondent; Principal Secretary had found no justification in granting sanction to prosecute the respondent and hence the same was refused; thereafter the Vigilance Department took up the matter again with Principal Secretary, Health for grant of sanction; Competent Authority reconsidered the matter and granted the sanction to prosecute the respondent; no fresh material was available for further consideration; it was held that sanction to prosecute public servant may be granted only where fresh materials have been collected by investigating agency subsequent to earlier order and matter is reconsidered by sanctioning authority in the light of fresh materials; power of sanctioning authority, being not of a continuing character, could have been exercised only once on the same materials.
10. Learned counsel for the applicant has placed reliance upon State of Punjab and Anr. Vs. Mohammed Iqbal Bhatti, 2009 (67) ACC 350, in which matter dealt by the Apex Court was whether the State has any power to review the order; it was held that in the event it appears from the order and record that even if a valid order is not authenticated in terms of article 166 (3) of the Constitution of India, the same would not be vitiated in law; failure to authenticate an executive order is not fatal as the said order is directory and not mandatory, hence no interference was warranted and accordingly, the appeal was dismissed. Paragraph nos. 5 and 6 of the said judgment are quoted hereinbelow:-
5. The respondent is a public servant. The Governor of the State of Punjab is his appointing authority. He is, therefore, not 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 insofar 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 thereagainst.
11. Learned counsel for the applicant has placed reliance upon Suresh Kumar Bhikamchand Jain Vs. Pandey Ajay Bhushan and others, 1998 CRI. L. J. 1242, in which process was issued by the Magistrate for appearance of the accused on being satisfied that there was ground for proceeding; plea by the accused taken before Magistrate was that offence was committed by him in discharge of official duty and that court had no power to take cognizance in absence of previous sanction of government; it was held that accused can produce relevant materials to establish necessary ingredients for invoking section 197(1) Cr.P.C.
12. Learned counsel for the applicant has placed reliance upon State of Orissa & Others Vs. Ganesh Chandra Jew, 2004, AIR SCW 1296, in which it has been held by Hon'ble Apex Court that the expression 'no court shall take cognizance of such offence except with previous sanction' makes protection mandatory and bars the very cognizance of complaint'. Further it is held that the expression 'any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty'. In the said expression, the expression 'official duty' implies that the act or omission must have been done by public officer in course of his service and that it should have been 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. Further it is held that it has been widened further by extending protection to even those acts or omissions which are done in proposed exercise of official duty. That is under colour of office, Official duty, therefore implies that the act or omission must have been done by a public servant in course of his service and such act or omission must have been performed as part of the duty which further must have been official in 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 official duty, then it must be given liberal and vide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner but once it is established that act or omission was done by public servant while discharging his duty then the scope of its being official should be construed so as to advance objective of the section in favour of the public servant.
13. Learned counsel for the applicant has placed reliance upon State of Maharashtra Vs. Dr. Budhikota Subbard, (1993) 3 SCC 339, in which it is held by Hon'ble Apex Court that for protection under Section 197 Cr.P.C., the offence must have been committed 'while acting or purporting to act in discharge of his official duty'; further the meaning of official duty has been referred as (1) act or omission must have been done by public servant in course of his service and (2), it should have been done in discharge of his duty.
14. Learned counsel for the applicant has placed reliance upon State through C.B.I. Vs. B.L. Verma & another, (1997) 10 SCC 772. In this case, it is held by the Apex Court that provision of Section 197 Cr.P.C. is mandatory, hence where the actions alleged against public servant to be constituting offences had been done in purported discharge of his duties, even though amounting to abuse of power, it was held that the trial court could not, in absence of sanction under Section 197 Cr.P.C. take cognizance of the said offences and therefore it was held that High Court had rightly directed the dropping of the proceedings, however, it was further held that such an order of the High Court did not have the effect of barring grant of Section subsequently and activating the prosecution thereafter.
15. Learned counsel for the applicant has placed reliance upon R.Balakrishna Pillai Vs. state of Kerala & another, (1996) I SCC 478. In this case, it is held that for extending protection under Section 197 Cr.P.C., it has to be assessed as to whether the act complained of had a direct nexus or relation with the official duties of a public servant and that will depend on facts of each case. It was further held that where the act is directly and reasonably connected with official duty as in the present case the act alleged was directly and reasonably connected with the official duty of a Minister, therefore, it attracted protection under Section 197(1) Cr.P.C. and it is further held that protection under Section 197(1) Cr.P.C. extends to public servant even if the public servant sought to be prosecuted has ceased to be a public servant on the date of taking cognizance of the offence.
16. Learned counsel for the applicant has placed reliance upon Amrik Singh Vs. State of Pepsu, AIR 1955 Supreme Court 309. Paragraph no. 11 of the said judgment is as follows:-
11. ............The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a pubic servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary.
17. Learned counsel for the applicant has placed reliance upon Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622. In this case, it is held that sanction for prosecution requires to be a valid sanction which involves independent application of mind to the facts of the case as also material and evidence collected during investigation by the Authority competent to grant sanction. The sanction issued by an Authority on the directions of the High Court is held to be invalid because there was no independent application of mind by the said authority. The High Court's direction had taken away discretion of the Authority not to grant sanction and it was left with no choice but to mechanically accord sanction in obedience of the mandamus issued by the High Court.
18. Learned counsel for the applicant has placed reliance upon R.S. Nayak Vs. A.R. Antulay, 1984 SCC (Cri) 172. In this case it is held that MLA is not a public servant. It is further held that accused must continue to be a public servant on the date of taking cognizance of the offence and not on the date of commission of the offence which are per-conditions for granting sanction. It is further held that where a accused holds a number of public offices, competent authority to accord sanction would be the one, competent to remove him from office which he is alleged to have misused and abused with corrupt motive. The removing authority has to apply its mind on the question of sanction considering the allegation regarding corrupt use of the official power.
19. From the side of C.B.I., counter affidavit has been filed in which it is stated that case was registered on 22.12.1995 at C.B.I./SIC-IV, New Delhi in pursuance of the order of Apex court dated 15.12.1995 in Writ Petition (Crl.) No. 93 of 1994 (Smt. Muni Devi Vs. State of U.P.) against S.L. Kashyap the then Station Officer, P.S. Nauchandi, Meerut and other co-accused which includes the accused applicant under Section 120-B read with Section 302, 364, 201 and 220 IPC and subsequently investigation was entrusted to C.B.I/S.I.C.-IV, Lucknow on 27.12.1995. The petitioner Munni Devi was mother of the deceased Gopal Maheshwari, who stated that her brother Suresh Chandra and her son Gopal Maheshwari (deceased) were illegally taken away on the morning of 24.2.1994 by police personnel subsequently in the night of 26/27.2.1994 deceased Gopal Maheshwari was killed in fake encounter.
20. In response to the averments made in the affidavit from the side of applicant, it is submitted that in course of investigation, sufficient evidence was gathered to prosecute the applicant along with other co-accused. S.P.'s report dated 19.3.1999 was sent to Government of U.P. requesting to accord sanction for prosecution and for departmental action. Deepti Vilas, Secretary, Government of U.P. vide letter dated 24.7.2002 intimated C.B.I. the decision of the State Government regarding sanction for prosecution against accused officers including the accused-applicant, photo copy of the said letter is annexed at annexure CA-1 to the counter affidavit. C.B.I. filed charge sheet on 7.12.2001 against the accused-applicant and other co-accused in the court of C.J.M., without sanction for prosecution and the trial court took cognizance on 17.1.2002. On 16.7.2004, the same court passed an order that in absence of sanction for prosecution, the proceedings of the case were closed and the same could be resumed if the sanction for prosecution was accorded. Subsequently, the sanction of prosecution against the accused persons was granted under Section 197 Cr.P.C. by the State Government vide order dated 15.7.2005 which is annexed at annexure CA-2. It is further mentioned that the trial has remained held up for last five years and that it is imperative in the interest of justice that the stay order dated 21.6.2006 be vacated so that the trial may proceed.
21. Reliance has been placed by C.B.I. upon Devendra Pratap Singh Vs. State of Bihar and Anr., AIR SC 1671, in which a police officer (S.H.O) was alleged to have committed offences of hurt, theft and criminal intimidation and it was held that the said offences did not have any nexus or relation with discharge of his official duties as Government officers, hence sanction was not necessary.
22. During oral submissions made by the learned counsel for the applicant much emphasis was laid by him that when in earlier vide order dated 24.7.2002, the sanction to prosecute the applicant was not given by the Government then without any fresh material, subsequently vide order dated 15.7.2005 the prosecution sanction could have been given by the State Government as there does not lie any power with Sate Government to review its order and in this regard the pertinent ruling which he has relied is a case of State of Punjab Vs. Bhatti (supra).
23. In this regard, I have gone through both the orders i.e. order dated 24.7.2002, whereby it was conceded by the Government of U.P. that sanction does not require to be accorded and only departmental proceedings were held against the applicant and other co-accused in which it was mentioned that with respect to according sanction, the Government considered the matter and it was found that deceased had died in police encounter in the intervening night of 26/27.2.1994. According to local police, in the night of 26.2.1994 at about 10:30 pm, on Mall Road two unknown persons had looted a scooter of one Krishnapal Singh on the basis of which case of loot was registered at P.S. Lalkurti, Meerut and soon after receiving this information, the police party had reached the spot and at the instance of Krishnapal Singh, chase was given to the miscreants. It is further mentioned that the police of P.S. Medical College, District Meerut had an encounter with miscreants in which police had made firing in their defence and in the same, one miscreant had died on the spot which was found to be deceased Gopal Maheshwari, while the other miscreants had fled from the spot. It is further mentioned in the said order that C.B.I. had concluded that the deceased Gopal Maheshwari was picked up from house in Kasganj in the intervening night of 24/25.2.1994 and that he was kept illegally in police custody till 26.2.1994 and in the intervening night of 26/27.2.1994, he was murdered showing it to be a false encounter, while as per the facts provided from the side of CBI, from the deceased Gopal Maheshwari and other co-accused ticket no. H-27 & H-28 were recovered of Nandan Cinema. Both these tickets were of 26.2.1994 of the evening 6 to 9 pm show by which CBI had concluded that the deceased Gopal Maheshwari was arrested by police of Kasganj in the intervening night of 24/25.2.1994 and after keeping him in illegal custody, he was eliminated in fake encounter in the intervening night of 26/27.2.1994, the said version of the C.B.I. becomes doubtful and hence it was held that there was no justification to grant grant prosecution sanction. In subsequent order dated 15.7.2005, it was recorded by the Government that the opinion has come on record that Gopal Maheshwari (deceased) resident of 33 Harinagar, P.S. Bramhpuri, Meerut and Suresh Chandra resident of Mohalla Jaijairam, P.S. Kotwali Kasganj, both were caught in the intervening night of 24/25.2.1994 by the accused-applicant along with other co-accused and were detained on the first floor of the Police Station, Medical College, Meerut and thereafter the applicant and the other co-accused had eliminated him in the intervening night of 26/27.2.1994 showing it to be a fake encounter, while it was shown that deceased and Krishnapal Singh were fleeing after looting scooter from Pratap Singh, apart from that a panchayatnama was also prepared by the City Magistrate without identification of the dead body and his body was also cremated. With respect to causing death of the deceased Gopal Maheshwari in fake encounter on 26.2.1994, case crime no. 82 of 1994 was registered at P.S., Meerut, under Sections 307 and 412 IPC and also under crime no. 83 of 1994, under Section 25 of Arms Act, in which the Hon'ble Supreme Court had passed order for investigation on 15.12.1995 and under the order of Apex Court, investigation was handed over to C.B.I. and the C.B.I. after extensive investigation has found prima facie that a case under Section 302/201/218 read with Section 120B IPC is found to be made out against the accused applicant and other co-accused. Further it is recorded that after having gone through the entire evidence, which has been presented before it and after careful consideration of the same, Government is convinced that the applicant along with other accused be prosecuted for the said offence and Hon'ble Governor has been pleased to accord the prosecution sanction. It appears from the perusal of both the orders that in the earlier order material, that there was an order of Supreme Court passed on the writ petition filed by the mother of the deceased for investigation to be held which was handed over to C.B.I., was not taken into consideration as no such mention has been found in the said order, hence it is found that additional material was placed before Government for considering as to whether prosecution sanction be accorded or not and therefore at the subsequent stage, when the same has been accorded on the basis of additional material, it cannot be said that any violation of law has been made by the Government by according the said sanction and therefore above mentioned law which has been cited by the learned counsel for the applicant would not help at all. Further I find that facts of this case are very clear now as have been mentioned above that the accused-applicant is found involved in taking away the deceased and thereafter a fake encounter was made in which he was eliminated and that when the inquest was being conducted by the said City Magistrate, the same was allowed to be done without his identity being disclosed though it has come in evidence that accused-applicant knew full well the identity of the said deceased and thereafter his cremation was also allowed to take place without disclosing his identity, which shows that there is plenty of inculpatory evidence against the applicant.
24. As regards prosecution sanction, much argument was also made that protection under Section 197 Cr.P.C. should be extended to the accused, to which learned counsel for the C.B.I. has relied upon Devendra Pratap Singh Vs. State of Bihar (supra) in which it is clearly held that when there is no nexus of the act committed by the accused with his official duty, protection of section 197 Cr.P.C. would not be given. Several citations which have been relied upon by the learned counsel for the applicant himself clearly speak that there should be nexus of the act allegedly done by the accused with his official duty and if it is not the case then no protection can be granted to the accused. In the present case, it is found that it cannot be held to fall in official duty of the applicant to eliminate the deceased, if he had committed any wrong then judicial process ought to have been resorted to by lodging F.I.R. under the appropriate sections, but this Court finds that question of granting protection under Section 197 Cr.P.C. does not arise, however, it is irrelevant because already prosecution sanction has been granted in this case by the Government. It has also to be made clear here that investigation in this case was handed over to C.B.I. pursuant to the order of Hon'ble Suprme Court therefore Hon'ble Apex Court was fully seized with the matter and a query was made from the learned counsel for the applicant as to why he did not approach the Hon'ble Apex Court when he was feeling aggrieved that this sanction has been granted subsequently by reviewing earlier order. If there was any such grievance to him he could have approached, the Hon'ble Apex Court and mentioned in Writ Petition (Crl.) No. 93 of 1994, which has been disposed of also vide order dated 25.7.2005, in which Hon'ble Apex Court has passed following order:-
In view of the counter affidavit filed on behalf of the State informing this Court that the sanction has now been granted for prosecution of accused no. 1 to accused no. 6, no further orders are called for. The CRLMP stands disposed of.
25. It appears from the order of Hon'ble Apex Court as well that it has disposed of the matter when it found that sanction for prosecution has already been accorded, therefore, I find that no ground to allow this application and the same deserves to be rejected and accordingly, rejected.
26. Interim order stands vacated forthwith.
Order Date:20.2.2020 A.P. Pandey