Jai Prakash Tiwari vs State of U.P. and another

Vinod Prasad, J.—Applicant Jai Prakash Tiwari has approached this Court through instant Criminal Misc. Application u/s 482, Cr.P.C. (In short ''Code''), questioning legality and sustainability of proceedings against him of Case No. 7053 of 1996, State v. Yogendra Rai and others, under Sections 147, 148, 149, 302, 201, 218 and 120B, I.P.C, P.S. Gopiganj, district Bhadohi (now district Sant Ravidas Nagar, Bhadohi), relating to Crime No. 207/87, pending before C.J.M.. Sant Ravidas Nagar, Bhadohi. Additional prayer is to quash various orders issuing N.B.Ws. and proclamation u/s 82/83 of the Code against him dated 13.12.2006, 30.9.2008 and 18.11.2008 vide Annexures-1, 1A and IB to this Criminal Misc. Application (herein after referred to as Application).

Stated briefly, preceding facts generating this Application are that real brother of informant Rajendra Prasad Singh, respondent No. 2 namely Devendra Singh (Deceased) was shot dead by the police on 4.4.1982. In respect of the occurrence in which deceased lost his life two contradictory versions came to light-one by the police through S.H.O. Shitla Prasad Pandey of P.S. Gopiganj and other by the informant respondent No. 2 Rajendra Prasad Singh. According to the Police version known dacoits Jai Prakash Tiwari and Kishav Pandey were companions of Tahsildar Singh, resident of village Semra. P.S. Chilha, district Mirzapur and they were regular visitors at his house. Police was informed on 4.4.1982 at 9.45 p.m. by an informer, which was inked at Rapat No. 34 at P.S. Gopiganj, that aforesaid dacoits alongwith 8-9 of their companions armed with fire arms are harbouring in the newly constructed house of Tahsildar Singh in Gopiganj and if raid is conducted without delay they can be apprehended. Believing information to be true S.H.O. Shitla Prasad Pandey, S.I. Yogendra Kumar Rai. Constables Markandey Ojha, Manjoor Ahmad all armed with S.B.B.L. guns, S.I. S.M. Chaubey, S.I. A.K. Singh. S.I. Nagendra Tiwari all armed with revolvers and Constables Chitranjan Thakur, Ram Chandra Yadav, Israr Ahmad, Beer Malkhan Dubey and Chaturi Prasad driver all armed with clubs, started from police station at 9.55 p.m. for the spot and in the way they were joined by H.C. Paras Nath Singh, Ezaz Ahmad, Phool Chandra Rai, Jawahar Ram, Rama Shankar Rai, Mohd. Anis Khan of police out post Gopiganj albeit, inspite of efforts no independent persons joined them. At 10.30 p.m. raiding party reached near the house where dacoits were harbouring and it laid seize of the place. Shutter of the room was down. At 10.45 p.m., on challenge being thrown a shooting spree ensued by cross-exchange of fires from both the sides. Some of the brigands came out of the room and plunged into the tank with water hyacinth (Jalkumbhi) situated adjacent to the room, some others fled towards north and some escapingly sprinted towards east. Dacoits, who escaped eastwards continued firing at the police raiding party and consequently, executing their plan, police party divided into two contingents gave them a chase. Meanwhile, one of the dacoits climbed the roof and started firing at the police party putting lives of police personnels into danger. To counter the situation three police personnels S.I. Yogendra Rai, Constable Ezaz Ahmad and S.H.O. Shitla Prasad Pandey, concealing themselves climbed on the roof and dodging the fire made by miscreant made retaliatory fires shooting him down at 11 p.m. who was later on identified as Devendra Singh deceased brother of the informant. A S.B.B.L. gun number 3611-76 was lying on his chest with a bandolia wrapped round his waist studded with thirteen live cartridges which were recovered and seized vide Annexure-3. Many empties were scattered on the roof. Leaving the corpse of the dead brigand in the custody of constable Ezaz Ahmad, police personnels alighted from the roof in search of other dacoits but they had already managed their escape. Some of the bullet empties were recovered from room and basement (tahkhana), which were sealed. In the aforesaid incident none of the police personnels, however, sustained any injury.

With the above allegations. S.H.O. Shitla Prasad Pandey, got F.I.R., Annexure-2 of Crime No. 74/82, under Sections 147, 148, 149, 307. I.P.C. and Crime No. 75 of 82, u/s 25 Arms Act, registered at P.S. Gopiganj district Varanasi (Now district Sant Ravi Das Nagar) on 5.4.1982.

Both the aforesaid Crime Nos. 74/82 and 75/82 were investigated by the police and ultimately two Final Reports were submitted in respect of both the crime numbers on 15.9.1982 vide Annexure-4 which both were accepted by the Magistrate on 24.11.1982.

In respect of aforesaid incident a Magisterial inquiry was also conducted and it''s report dated 25.11.82, Annexure-5 countenanced Police version. According to applicants case informant and deceased had criminal proclivities and had history to their credit vide Annexure-6 to this Application.

Countering police version an application was filed by respondent No. 2 informant addressed to the Chief Minister of the State through the help of an M.L.A. which too was registered as an F.I.R.

The version by respondent-informant in his F.I.R. dated 18.10.2007 registered as Crime No. 207/87, under Sections 147, 148, 149, 302, 201, 218, 120B, I.P.C.. vide Annexure-8, were that informant and the deceased were transporters and brick kiln owners. Informant had a licensed rifle, licence of which was attempted to get cancelled by police of P.S. Chilh and in that endeavour it had submitted a report, on the basis of which a notice for cancellation of licence was issued to the informant against which informant had filed an objection on 23.2.1982 and had also obtained a stay order from this Court. In the past police had attempted to take undue advantage from the informant and the deceased but they were not obliged. Because of the aforesaid reasons police of P.S. Chilh, harboured animosity with the informant. Deceased had a house near the petrol pump beside G.T. Road in Gopiganj. On 4.4.1982 at 11 p.m. S.I. Yogendra Rai and five or six constables of P.S. Gopiganj barged into the room where the deceased was sitting alongwith Kamla Shankar, Chandel Dubey, Shyam Lal, Vinod and S.I. Yogendra Rai threatened the deceased that he shall be encountered and no sooner thereafter shot him dead then and there. The said S.I. threatened the present witnesses with their lives and with the help of his associates plunged the dead body in a nearby pond, and an hour subsequent thereto fished it out and by dragging it threw it in the house of Gulshan. An illegal gun was kept on dead body''s chest. Police personnels kept the arms by which murder was committed in their possession and obliterated murder evidences and post-mortem on the body of the deceased was got performed following day. Informant''s applications to various authorities yielded no result. Fake encounter of the brother had caused enormous shock and mental torture to the informant but since police personnels- were the culprits informant could not muster courage to lodge a F.I.R. directly as there was apprehension for him and his family members lives.

It was with above allegations that the informant addressed an application to the Chief Minister of U.P. and got it endorsed by Rewati Raman Singh, an M.L.A. and then dispatched it. Said application by the informant was registered as Crime No. 207 of 1987, under Sections 147, 148, 149, 302, 201, 218, 120B, I.P.C. at P.S. Gopiganj on 18.10.1987 at 9.45 a.m. It seems that initially a FR was submitted being F.R. No. 33A/82 vide Annexure-7 but ultimately after proper investigation by C.B.C.I.D. resulted in charge-sheeting twenty accused named therein, on 14.7.1994 vide charge-sheet number 59, Annexure-10, for aforesaid offences.

On the basis of charge-sheet cognizance of the offences was taken by C.J.M.. Gyanpur and consequently Criminal Case No. 830 of 1994 (renumbered as Case Number 7053 of 1996), State v. Yogendra Rai and others, for the aforesaid offences was registered. Failure of the applicant accused in honouring subpoena issued by C.J.M. resulted in issuance of N.B.Ws. against him on various dates vide Annexures 1 and 1A and thereafter proclamation u/s 82 and 83, Cr. P.C vide Annexure-IB. Hence, this application questioning legality and sustainability of prosecution against the applicant accused and for quashing of N.B.Ws. and proclamation u/s 82/83 of the Code.

I have heard Sri U.N. Sharma, learned senior advocate for the applicant assisted by Sri Sandeep Shukla and Chandan Sharma, advocates and learned A.G.A. in opposition.

It was submitted by learned senior counsel that the entire prosecution of the applicant, who is a police Constable in connection with above referred incident, is illegal and non-est being contrary to provisions of Section 197 of the Code. It was argued that unless there is sanction for prosecution granted by the State Government, under whose services applicant was employed, he cannot be prosecuted as whatever applicant accused had done was in the discharge of his official duty. It was strenuously contended that applicant has not committed any crime as F.I.R. by the police depicts that he was acting or purporting to act in the discharge of his official duty. Adding a thrust to the argument, learned senior counsel went further to suggest that while summoning the applicant, C.J.M. has not at all considered the question of bar u/s 197 of the Code which was a must for him and hence entire prosecution of the applicant is void ab-initio. He continued further to argue that before taking cognizance, C.J.M. should have decided question of applicability of Section 197, Cr.P.C. as a preliminary question by passing a reasoned order and only after deciding it against the applicant that he should have taken cognizance of the offence in respect of applicant. Learned senior counsel pressed Section 197(2) and (3) of the Code to buttress his contention. It was submitted that unless Magistrate undertakes such an exercise mentioned above, entire cognizance taken by him will be contrary to law. Learned senior counsel in support of his contention relied upon various judicial pronouncements in Rakesh Kumar Mishra Vs. The State of Bihar and Others, : P.K. Choudhury Vs. Commander, 48 BRTF (GREF), Parkash Singh Badal and Another Vs. State of Punjab and Others, State of Madhya Pradesh Vs. Sheetla Sahai and Others, and Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 : 2008 (1) ACR 586 (SC).

With tongue in cheek, the second limb of argument raised was that F.I.R. by the informant respondent was registered by exerting political pressure through a M.L.A. by moving an application addressed to the Chief Minister and therefore, entire prosecution is tainted with mala fides anointed with vindictive motive and is vexatious, hence it must be quashed to contain malicious prosecution and harassment of the applicant. In support reliance was placed on the contents of F.I.R. Annexure-8.

Refuting both the above contentions argued by learned senior counsel for the applicant, learned A.G.A. conversely contended that question of sanction is a mixed question of fact and law and can be considered only after Court has taken cognizance u/s 190(b) Cr.P.C. He submitted that in the instant case the contention of learned senior counsel is unmerited because nowhere it was pointed out by the prosecutor that sanction was at all required in the instant case. It was submitted that infact, it was a case where the deceased was murdered in a most brutal manner in a fake police encounter and thereafter his cadaver was plunged into a pond and later on the same was fished out to create a hokum and give colour of a police brigand encounter by the accused police personnels including the applicant and therefore, question of requirement of sanction does not arise at all as the activity of the applicant alongwith other socio criminises was not in discharge of his official duty. It was additionally submitted that another accused Yogendra had already unsuccessfully approached this Court in the past and had failed to obtain any relief in respect of identical prayer from this Court in Criminal Miscellaneous Writ Petition No. 16197 of 1994. It was further submitted that Section 197, Cr.P.C. cannot be resorted to in those cases where the accused persons under the cloak of performing their duty commits crime so unconnected with their official duty that they cannot be considered to be a part of their official duty by any hypothesis. It was submitted that the decisions relied upon by the learned counsel for the applicant itself are the pointers on this aspect of the matter, and therefore, none of those decisions help the case of the applicant at all. It was next submitted that informant''s version is that of applicant being a party to a fake police encounter case in which deceased was shot dead in a most dare devil manner and consequently such a prosecution cannot and should not be quashed. It was thus concluded that present criminal miscellaneous application is unmerited and must be dismissed. It was additionally prayed that crime is of the year 1982 and 28 years had already lapsed without commencement of the trial, therefore, suitable directions for expeditious disposal of trial be ordered so that no further delay is caused in bringing culprits to books and in dispensation of justice.

I have considered rival contentions and have gone through the entire record of this Criminal miscellaneous application.

I propose to deal with second limb of argument first. Dealing with that second argument that the prosecution of the applicant is vexatious, mala fide and was engineered with ulterior motives with the help of a M.L.A. and the Chief Minister learned senior counsel for the applicant relied only upon the text of F.I.R. Annexure-8. Besides referring to the contents of said annexure he did not endeavour to elaborate and substantiate the said argument. Attour alongwith this application no material and documents collected during investigation have been annexed in support of such an argument leaving no scope for this Court to consider the same in all it''s pros and cons. It is material collected during investigation that discloses offences against the applicant and his companions. Charge-sheet u/s 173(2) of the Code is only summarising opinion of the Investigating Officer and his conclusions are based on collected material to indicate as to whether any offence is disclosed or not and if disclosed who are the perpetrators of those offences so as to get them prosecuted for those offences. It is the conducted investigation and material collected during it which is the life and breath of entire prosecution version, which are entirely based on it. Consequently it is sine qua non to scan those materials to come to a conclusion as to whether any offence is disclosed against any accused or not or whether the prosecution is mala fide or vexatious or not? In absence of those materials, which are contained in the case diary in the form of 161 Cr.P.C. statements or other documentary evidences, contention of the accused that his trial is mala fide, vexatious or purposive cannot be scanned and judged as that will be an exercise in futility. Determination of question of mala fides has to be determined on the entire facts and circumstances of entire investigation containing complete prosecution version and evidences supporting it. Merely, because application to get a F.I.R. of a murder offence registered against police echelons was addressed to the Chief Minister after being endorsed by a M.L.A. is no ground to prematurely presume that prosecution of police personnels for a charge of committing murder by fabricating a fake encounter hokum is vindictive, vexatious and mala fide requiring it to be stifled at it''s very inception and nip the prosecution into bud. If conducted investigation reveals prosecutable offences then question of mala fide and vexatious prosecution relegates into the background and trial must be allowed to proceed and it should be left to the trial court to determine that question. u/s 482 of the Code this Court should be loathsome to undertake such an exercise and pre-judge the issue. In this respect, referring of various judicial pronouncements will only burden this judgment, as they are too settled a proposition to be doubted decades after. However, few decisions are referred to hereinbelow just as exemplers. In State of Andhra Pradesh Vs. Bajjoori Kanthaiah and Another, it was held by the Apex Court as under :

As noted above, the powers possessed by the High Court u/s 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material....................It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers u/s 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole............It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding............

9................Whether the material already in existence or to be collected during investigation would be sufficient for holding the concerned accused persons guilty has to be considered at the time of trial. At the time of framing the charge it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At that stage also evidence cannot be gone into meticulously. It is immaterial whether the case is based on direct or circumstantial evidence. Charge can be framed, if there are materials showing possibility about the commission of the crime as against certainty. That being so, the interference at the threshold with the F.I.R. is to be in very exceptional circumstances as held in R.P. Kapoor and Bhajan Lal cases (supra).

In The State of Andhra Pradesh Vs. Aravapally Venkanna and Another, a Full Bench of Apex Court has observed as under :

In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction u/s 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the Junction of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power u/s 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, . A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories Indicated by this Court are as follows :

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

In view of above exposition of law the minor second contention of learned senior counsel that the proceedings are tainted with mala fides and are vexatious is unmerited and is hereby rejected.

Adverting now to the most contentious pivotal first contention regarding applicability of Section 197, Cr.P.C. it is to be noted that Section 197 of the Code envisages protection of Government servants from their frivolous, vexatious and motivated prosecution if some offence has been committed by them in discharge of their official duties. Immunity from prosecution and cover of protective umbrella of sanction on a Government servant, whether of Union or State, is available to him only on fulfilment of two sine qua non preceding legal requisites (1) that official concerned should be Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government under whose employment they were serving and (2) that the offence has been committed by them while acting or purporting to act in discharge of their official duty. If aforesaid two pre-requisite conditions exists then, without sanction by the respective Government no public servant can be prosecuted for any offence committed by him in the discharge of his official duty as the Courts are even barred from taking cognizance of such an offence or offences. Such protection has to be conferred on the Government servants because of inherent idea that no public servant should be harassed and threatened while performing his official duty. Law enjoins that every Government servant should perform his official duty fearlessly without favour and consequently unless and until the protective arms of law are allowed to reach for their protection from frivolous and vexatious prosecution in performance thereof there shall always be a danger looming large on their heads of facing such prosecution initiated by an unscrupulous litigant, which will not only deter them to eschew their responsibility but they may be charged even with dereliction of their duties as well. Thus necessity of sanction is a legal imperative for prosecution of a Government servant if the two above referred conditions are satisfied. Power to grant such sanction has been conferred on the two Governments-Union or State by the statute prior to cognizance is taken by the Courts. It is thus clear that grant of sanction is an administrative act by the Government looking to the objective behind legislative intent. This aspect of the matter has been decided affirmatively time and again by the Apex Court. It has been held in Choudhury Parveen Sultana Vs. State of West Bengal and Another, as under :

The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava''s case (supra) holds good even today. 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 Section 197, Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Sriuastaua''s case (supra), the underlying object of Section 197, Cr.P.C. is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197, Cr.P.C. and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned.

In the instant case, certain deeds and acts have been attributed to the respondent No. 2 and another accused, which cannot be said to have been part of the official duties to be performed by respondent No. 2. Hence, in our view, the respondent No. 2 was not entitled to the protection of Section 197, Cr.P.C. in respect of such acts.

While dealing with the aforesaid question, the High Court appears to have been swayed by the submissions made on behalf of the respondent No. 2 that since in the complaint the acts of extortion and criminal intimidation were alleged to have been committed by the respondent No. 2 and co-accused while conducting investigation in connection with Behrampore Police Station Case No. 348 dated 9.11.2005, such offences were purported to have been committed by the respondent No. 2 while discharging official duties.

We have already indicated that we are unable to accept such a view. In our view, the offences complained of cannot be said to be part of the duties of the Investigating Officer while investigating an offence alleged to have been committed. It was no part of his duties to threaten the complainant or her husband to withdraw the complaint. In order to apply the bar of Section 197, Cr.P.C. each case has to be considered in its own fact-situation in order to arrive at a finding as to whether the protection of Section 197, Cr.P.C. could be given to the public servant. The fact-situation in the complaint in this case is such that it does not bring the case within the ambit of Section 197 and the High Court erred in quashing the same as far as the respondent No. 2 is concerned. The complaint prima facie makes out offences alleged to have been committed by the respondent No. 2 which were not part of his official duties.

In Parkash Singh Badal and Another Vs. State of Punjab and Others, it has been held as under :

As regards applicability of Section 197 of the Code, the position in law has been elaborately dealt with in several cases.

In Bakhshish Singh Brar Vs. Gurmej Kaur and Another, this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows :

It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.

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. 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 such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, 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 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. 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. This aspect makes it clear that the concept of Section 197 does not immediately get attracted on institution of the complaint case.

At this juncture, we may refer to P. Arulswami Vs. The State of Madras, wherein this Court held as under :

... It is not therefore every offence committed by a public servant that requires sanction for prosecution u/s 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.

Turning towards facts at hand, so far as the first ingredient is concerned there is no dispute that a police Constable is under employment of State Government and he cannot be removed unless ordered by it. However, question is of applicability of the second sine qua non ingredient as to whether the applicant was acting or purporting to act in the discharge of his official duty?

This second aspect of the matter has to be considered in the light of allegations levelled by the prosecution. Defence of the applicant can be considered only in rarest of rare cases only when he has been summoned. It is important to note that question of sanction can be considered at any stage of the trial because once requirement of sanction is surfaced then further proceeding of trial in absence thereof will be illegal and void. In Prakash Singh Badal and another (supra) it has been held as under :

The question relating to the need of sanction u/s 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.

Deliberating on the question of as to what is meant by "acting or purporting to act in the discharge of official duty" Apex Court in the above decision of Prakash Singh Badal (supra) has held as under :

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 under the said provision.

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 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 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. 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 there for 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.

If on facts, therefore, 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 of the Code cannot be disputed.

The above position was highlighted in State of H.P. Vs. M.P. Gupta, State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew, Shri S.K. Zutshi and Another Vs. Shri Bimal Debnath and Another, K. Kalimuthu Vs. State by D.S.P., and Rakesh Kumar Mishra Vs. The State of Bihar and Others,

In Rakesh Kumar Mishra''s case (supra) it was inter alia observed as follows :

In S.A. Venkataraman Vs. The State, and In C.R. Bansi Vs. The State of Maharashtra, this Court has held that :

There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a Court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the Court was asked to take cognizance, although he had been such a person at the time the offence was committed."

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When the newly-worded section appeared in the Code (Section 197) with the words "when any person who is or was a public servant" (as against the truncated expression in the corresponding provision of the old Code of Criminal Procedure, 1898) a contention was raised before this Court in Kalicharan Mahapatra Vs. State of Orissa, that the legal position must be treated as changed even in regard to offences under the Old Act and New Act also. The said contention was, however, repelled by this Court wherein a two-Judge Bench has held thus :

A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 197 of the Act if he continues to be a public servant when the Court takes cognizance of the offence. But if he ceases to be a public servant by that time, the Court can take cognizance of the offence without any such sanction.

The correct legal position, therefore, is that an accused facing prosecution for offences under the Old Act or New Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the Court took cognizance of the said offences. But the position is different in cases where Section 197 of the Code has application.

Section 197(1) provides that when any person who is or was a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union, or the Central Government and (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.

We may mention that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed :

it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant.

It was in pursuance of this observation that the expression ''was'' come to be employed after the expression is'' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.

In P.K. Pradhan Vs. The State of Sikkim represented by the Central Bureau of Investigation, it was, inter alia, held as follows :

The legislative mandate engrafted in sub-section (1) of Section 197 debarring a Court from taking cognizance of concerned in a case where the acts complained of are alleged to have been committed by a 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 office save by or with the sanction of the Government, touches the jurisdiction of the Court itself. It is prohibition imposed by the Statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code : "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise u/s 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a Court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation.

Scanning facts of present application in the light of aforesaid decisions it is found that applicant was allegated to have been a privy to a fake police encounter case in which one person had lost his life. Whether it is duty of a police officer to be a part of a fake police encounter? The answer has to be in negative without any second thought. Fake encounter is a murder under the colour of performance of official duty. No Government servant can be allowed to commit crime under the garb of performance of official duty. If the version of informant is to be believed, which it has to be at the present stage of trial, then it was the police party who had trespassed into the room and shot dead deceased in a dare devil manner. The dead body thereafter was plunged into a pond and after some time was fished out and was thrown on a roof. This is nothing but a cold blooded murder. Protection of sanction is provided for observance of law and not for committing murders. Crime is a crime. To seek protection from prosecution of a crime u/s 197 of the Code it has to be prima facie established that the same was committed while performing such official duty non-performance of which would have amounted to dereliction of it.

Now turning to the submission that question of sanction has to be considered by the concerned court by passing a detailed order prior to taking cognizance, it is to be noted that taking cognizance is a judicial act by a Court u/s 190 and/or 193 of the Code. At that stage accused has no right to be heard and the Court has to look to the papers submitted to it by the Investigating Officer or the investigating agency or by the complainant. Accused does not come into picture at all at that time. It is on the material submitted by the prosecution that the concerned court has to apply it''s judicial mind to determine as to whether there is need for sanction or not? If the Court finds that there is no requirement of sanction it can take cognizance straightway without deliberating on the said aspect of the matter at all. At that stage it is not essential for it to conduct a pre-cognizance trial to determine requirement of sanction. Otherwise also question of sanction is a mixed question of facts and law both. It is in a given set of facts that the same has to be decided. Since at the stage of taking cognizance, Court is not required to scan entire material meticulously in all it''s pros and cons, therefore there is no need to decide question of applicability of sanction by passing a detailed order. However, if the Court conversely is of the view that sanction is needed before summoning an accused and he is protected u/s 197 of the Code, then the Court has to pass a detailed order stating it''s reasons for not taking cognizance against such an accused.

Coming to the decisions relied upon by learned senior counsel none of those decisions are of any help to the applicant. So far as decision in the case of Rakesh Kumar Mishra Vs. The State of Bihar and Others, is concerned it has been held thereunder 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. 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 such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, 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. 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 his question is in the affirmative, it may be 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. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.

P.K. Choudhury Vs. Commander, 48 BRTF (GREF), was a decision which was rendered on the peculiar facts of that case, which is perceptible from para 11 of the said decision. That was a case under Army Act and Sections 166, 167, I.P.C. and not with fake encounter allegations. Other decisions State of Madhya Pradesh Vs. Sheetla Sahai and Others, and Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 : 2008 (1) ACR 586 (SC), also does not support accused applicants contentions. They were rendered in different facts and circumstances altogether. Question of sanction has direct nexus with the act and not so much with the official duty which can be performed both legally and illegally. Viewed from said angle now what is to be looked into is as to whether the applicant''s act was in the discharge of his official duty or not ? As discussed earlier the act of the applicant was no part of his duty nor the same can be considered as such. Charge against the applicant is that he was a member of a police party who had committed murder of the deceased and thereafter had fabricated a false story of a fake police encounter. No doubt, police personnels are allowed to discharge their duty, apprehend and contained the menace of dacoity and eliminate brigands. This does not give them a licence to eliminate innocent people under the cloak of eliminating dacoits. In the present case, such is the allegation. Considering from any hypothesis, murdering of an innocent person under the garb of eliminating the dacoits cannot be considered to be discharge of official duty by the police personnels. Concludlngly contention by learned counsel for the applicant that applicability of Section 197. Cr.P.C. on the facts of the present case was a desirable necessity does not have appealing thrust and therefore. Is hereby repelled.

Another important aspect, which must be dealt with is that in the present case the investigator did not at all prayed for sanction by the State Government before launching prosecution and charge-sheeting applicant as In its opinion question of sanction did not arise at all. In such a view, the contention of learned counsel for the applicant that question of sanction should have been considered by the Magistrate does not arise at all. As has been pointed out above grant of sanction is the power vested in the Government. If the State Government under whose services applicant was employed did not thought it fit not to accord sanction and did not consider the activity of the applicant requiring sanction for prosecution, applicant cannot raise any grievance in that respect.

Wrapping up the discussion, there is no merit in this Criminal Miscellaneous Application which Is hereby dismissed.