Damodar Yadav and Others vs Union of India (UOI) and Others

Vinod Prasad, J.—In all ten petitioners in both the above connected writ petitions, namely, Damodar Yadav, Ravindra Kumar Yadav, Vijai Yadav, Mahendra Prasad, Arvind Kumar Upadhayay, Jagdish Chand Shukla, and Uma Shankar Singh in the former writ petition and Santosh Prasad Diwedi, Suresh Kumar Sonkar, and Kripa Shankar Misra in the later have questioned the legality and justifiability of the sanction order dated 24.12.2007, annexure No. VI, accorded by the President Of India and issued by Additional Secretary, Government Of India, Lok Nayak Bhawan, Khan Market, New Delhi, by which The President has sanctioned petitioner''s prosecution in crime number 79 of 1996, for offences under Sections 147, 302, 201, 121 I.P.C. relating to police station Gadwar, District Ballia. Also challenged in the two petitions are the non-bailable warrants issued against the petitioners by the Chief Judicial Magistrate, Ballia in the aforementioned crime number vide annexure No. VII to both the petitions.

A resume of essential facts indicates that S.I. Suresh Kumar Sonkar accompanied by Constable 148 Daya Shankar Yadav of Police Station Gadwar had gone to serve a stay order regarding a school building construction on Deep Chand Sharma who was raising the said construction in village Siria Kula. After service when they were returning then, in village Chogada Chatti, they witnessed Jitendra Bahadur Singh being belaboured by two or three people by kicks and fists. On the complaint made by the injured Jitendra Bahadur Singh, they arrested Devendra (Deceased) and brought him to the police station. Jitendra Bahadur Singh accompanied by Sanjai Singh, Ramesh Singh, and Chandra Deo Singh also came to the police station where Jitendra Bahadur Singh lodged a FIR crime number 78 of 96 under Sections 323, 194, 504, 506 IPC showing the incident to have occurred on 16.7.96 at 7 p.m. against Devendra Singh (Deceased) Janardan Singh, and Upendra Singh. In the General Diary of registration of said FIR description of the accused (deceased) is mentioned as 37 years, average built, no injury. The arrest G.D. of the deceased is annexure No. 1 to the Writ Petition Number 4293 of 2008. Deceased was locked in the lock up. According to annexure No. 2, S.I. S.K. Sonkar was going to urinate when he could not see the deceased accused in the lock up and therefore he gave him a call. No reply alarmed him and therefore he called Constable Arvind Upadhayay from the office who also called the deceased but in vain and then they got the lock up unlocked and found deceased lying still on his belly near western lock up wall. He was fully naked except an under garment (Ganji) and his red loin cloth rapped around his neck. Arvind Upadhayay S.O. was immediately informed and the S.I. sensed that Devendra accused had committed suicide. Inquest on the dead body of the deceased was performed on 17.7.96 from 1 p.m. to 3 p.m. by Suresh Singh, S.D.M. Sadar, Ballia and autopsy was performed on the same day at 5.p.m. Which indicate that the deceased had sustained four injuries on his body and the cause of his death was recorded as asphyxia. Vide annexure No. 3A it seems that an inquiry into the cause of death of the deceased was ordered by Superintendent of Police Ballia on 18.7.1996 vide letter number ST. 34/90, memo number S- 15/96. Additional Superintendent of Police, Ballia conducted the inquiry and submitted his report on 19.7.1996 where in he had mentioned that another inquiry is being conducted by Additional District Magistrate (Finance And Revenue). The said inquiry was order by the District Magistrate, Ballia on 18.7.96. The report of Additional District Magistrate (Finance and Revenue) dated 31.3.96, is annexure No. 4 to the later writ petition.

Virendra Singh informant, who is brother of Devendra Singh deceased, however moved an application on 19.7.96, addressed to the District Magistrate Ballia levelling allegations that his younger brother Devendra Singh Deceased was picked up SI Suresh Chand Sonkar on 16.7.96 at 5 p.m. and took him to Gadwar police station. Next day morning at 6 a.m. informant went to the police station to know the where about of the his brother as he had not returned the whole night accompanied by Surya Bali Singh and Jai Murat Singh he was informed by the Station Officer that some inquiry is to be made from his brother and after that he will be released. However informant was not allowed to meet his brother. In the evening that day at 4 p.m. constable Kripa Shankar and Head Moharrir of police outpost and Anjani Upadhayay informed the informant that he is required by the S.O. And they all accompanied him in a jeep to mortuary at Ballia. There informant met with the S.O. Santosh Kumar Diwedi, S.I. Sonkar, C.O Sadar, and other higher police officers. Informant was shown the corpse of his brother and seeing the same informant fainted. Thereafter the police personal cremated the dead body and the cremation Ghat. On 18.7.96 informant met with Superintendent of Police Sri Ram Tripathi but was rebuked. Informant thereafter gave a written intimation to Chairman, Human Rights Commission, Chief Justice OF India and Chief Justice of High Court and other constitutional authorities. With such allegations informant prayed that his FIR be registered and guilty be punished.

District Magistrate, Ballia on the said application and on the representation of the Bar Association ordered for registration of FIR. It was such an order that the FIR of crime number 79 of 96 under Sections 149, 304, 201 was registered at police station Gadwar District Ballia at 8.30. p.m. Against the police personal. Investigation of the said crime was entrusted to CBCID who after completion of the investigation applied for sanction before the Union Government, Ministry of Home Affairs, to prosecute the applicants u/s 197 Cr.P.C. which sanction was granted on 20/24. 12.2007 (Annexure No. 6). Subsequent thereto warrant of arrest was also issued 31.01 2008. The investigating officer thereafter applied for issuance of Non Bailable warrants before Chief Judicial Magistrate, Ballia which was granted by him on 20.2.2008, annexure No. 7.

It was at this stage that Damodar Yadav, Ravindra Kumar Yadav, Vijai Yadav, Mahendra Prasad, Arvind Kumar Upadhayay, Jagdish Chand Shukla, and Uma Shankar Singh approached this Court under Article 226 of The Constitution with the prayer to issue a writ order or direction in the nature of certiorari quashing the sanction order as well as NBW against Criminal Misc. Writ Petition No. 3617 of 2008. Three other accused also follow suit by filing Criminal Misc. Writ Petition No. 4293 of 2008. Both these writ petitions are being disposed off now by this common order.

We have heard Sri Dilip Kumar, learned Counsel for the petitioners in both the writ petitions at a great length in support of the two petitions and the learned AGA in opposition and have ourselves perused the writ petitions and the appended annexures.

The twin submissions of Sri Kumar mainly revolved round the contentions that the two inquiry reports one by Additional S.P. And the other by Additional District Magistrate were not produced before the sanctioning authority and therefore grant of sanction is based on Incomplete material and therefore non-est. In this respect learned Counsel relied upon annexures 3A and 4, which are the inquiry reports submitted by the Additional SP and Additional District Magistrate to the Superintendent of Police and to the District Magistrate respectively. Elaborating his submissions learned Counsel contended that in both the reports it is mentioned that the police persona] of the concerned police station were found to be guilty of dereliction of duty and no offence was found against them and hence had these reports been placed before the sanctioning authority, he probably could have taken a different view and consequently the sanction order is based on concealment of material facts and hence is the out come of non application of mind. The other contention of Sri Kumar is that Magisterial inquiry was contemplated u/s 176 Cr.P.C. and hence it is a statutory inquiry and therefore while applying for sanction the said report should have been placed before the sanctioning authority which was all the more necessary when the two opinions, one by the two inquiries and the other by the CBCID were contradicting each other. Concludingly it was submitted that the sanction order is illegal and therefore prosecution of the applicants be quashed.

Learned AGA on the contrary contended that sanction in the present case is not sine qua non for prosecuting the applicants accused and therefore these writ petition being bereft of any substance deserves dismissal. He submitted that causing death of a locked up person inside the police station is no part of official duty and therefore Section 197 have no application at all. It is further contended that after due investigation the CBCID, which is specialised agency to conduct the investigation found the petitioners guilty prima facie of committing murder and hence sanction was rightly accorded. He further submitted that non placement of the two inquiry reports by CBCID is of no consequence as only the material which has been relied upon by the investigating agency to establish the charge has to be placed before the sanctioning authority so that at the time of considering grant of sanction he could apply him mind to those facts and then either grant or refuse sanction. It is not essential to place all the reports before the sanctioning authority, which are not relevant and germane to the prosecution of the accused. Inquiries by Additional S.P. and by the Additional District Magistrate are in the nature of administrative fact finding inquiries which can not substitute or overthrow a regular investigation conducted by a specialised agency like CBCID over board urged learned AGA. Concludingly it is submitted that the two writ petitions are bereft of any merit and must be dismissed and further a mandamus be issued to the trial court to conclude the trial as the offence is very old of the year 1996.

We have cogitated over the rival contentions. Facts alleged by the prosecution are not challenged in the two writ petitions by the petitioners. Learned Counsel for the petitioner did not address at all on the allegations levelled in the impugned FIR by the informant and therefore we have to examine the case taking the FIR allegations to be true. Analysing from that angle what is conspicuously clear is the fact that the deceased was picked up from his house and was detained in the police lock up at the police station the whole night. At the time of his admission in the lock up, the General Diary entry indicate that he had no sign of any external mark of injury. Through out the night the deceased was under police custody. His post mortem indicated that he had sustained injuries on his person. From where those injuries came from is a big question which requires an answer from the petitioners who are all police personal involved in one manner or the other with the incident. It is for them to explain how and under what circumstances the deceased had died. Investigation conducted by CBCID indicted them with the charge of murder. Now the question which crops up for our consideration is as to whether the accused of a murder charge requires sanction for his prosecution or conversely whether prosecution require sanction to get the accused of a murder charge prosecuted?

Section 197 Cr.P.C. provides thus:

Section 197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction:

(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

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(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

A perusal of the aforesaid section indicate that there are two essential requirements for the applicability of this section. Firstly that some offence must have been committed by a public servant, who is not removable from his office with out the permission of the state government or the central government as the case may be and secondly, that the offence must be committed while discharging his official duty. If these pair of conditions are satisfied then the public servant comes within the protective shield of Section 197 Cr.P.C and absence of any of the condition will remove the said protective umbrella and there will be no impediment in prosecuting the public servant. The above protection has been incorporated to remove the fear from the minds of public servants of being maliciously prosecuted when they are acting under the colour of this office. In Rakesh Kumar Misra v. State of Bihar (2006) 1 SCC 432 the apex court has held as follows:

The protection given u/s 197 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.

Further deliberating on the requirement of grant of sanction before the court can take cognizance of the offence and elaborating the scope of need for sanction it has further been held further in the same decision, by the apex court, as follows:

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. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence...but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. 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

Thus what is perceptibly clear is that any act which amounts to an offence, unconnected with the official duty will not bring a public servant under the protective umbrella of Section 197 of the Code. It act alleged as an offence must have be committed in the discharge of the official duty. This position further settled by a catena of decisions of this Court as well as by the apex court. It has been held by the Supreme court in the case of State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew, as follows:

...A Court, there fore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.

Such being the nature of the provision the question is how should the expression, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", be understood? What does it mean? "Official" according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Others Vs. M.S. Kochar, , it was held:

The words ''any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, ''it is no part of an official duty to commit an offence, and never can be''. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision.

Use of the expression, "official duty" implies that the act or omission must have been done by the public in the 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.

It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. 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 nature. The Section has, thus, to be construed strictly while determined 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. 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 the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefore then the bar u/s 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey Vs. H.C. Bhari, thus:

The offence alleged to have been committed (by the accused) must have something to do. or must be related in some manner with the discharge of official duty...there must be a reasonable connection between the act and the discharge of official duty; the act must bear, such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

Further it has been laid down by the apex court in the case of Prakash Singh Badal v. State of Punjab (2007) 1 SCC 193 as follows:

Use of the expression, ''official duty'' in Section 197 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 in discharge of his duty. The Section does not extend the 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 it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 cannot be disputed.

In view of above law laid down by the apex court when we revert back to facts of the present case what we find is that the deceased was picked up from his house. He was illegally detained at the police station and was inflicted with injuries and he lost his life inside police lock up. It was no part of the duty of the applicants to pick up the deceased from his house for no reason (This we have observed as the facts mentioned in the FIR are not challenged by the petitioners in the two petitions during the course of argument albeit they allege that the deceased was picked up in crime number 78 of 1996 under Sections 323/504/506 IPC because he was quarrelling.) Even if we take the defence of the petitioners into consideration what we find is that the offences alleged against the deceased were all non cognizable and were bailable. Why the police locked him up in the lock up in such offences with out the order of the Magistrate is a big question which requires an answer. He was illegally detained and put in the police lock up and was assaulted inside police station. This was no part of official duty of the petitioners. According to the investigating agency CBCID, the deceased died homicidal death due to asphyxia. Who caused his death and how it was caused? These aspects have to be examined by the court. It was no part of official duty to cause injury to a locked up person inside his lock up. It was no part of official duty to cremate the body of the deceased surreptitiously.

Thus the residue of the above discussion is that the act complained of was no part of the official duty of the petitioners and therefore for their prosecution no sanction is required. It will be codswallop to cogitate that causing custodial death of a locked up individual is a part of official duty.

Summing up, since we are of the opinion that no sanction is required to prosecute the petitioners for a charge of murder we don''t deliberate on other aspects of the arguments as entering into that exercise will only be academic.

Thus the residue is that we don''t find any merit in these writ petitions which stands dismissed. Interim orders dated 5.3.2008 and 20.3.2008 stands vacated. Since the offence is very old we direct the trial court to take up the trial on an urgent basis and make an endeavour to conclude that same expeditiously.