Mohd.Bashir and others vs State of J & K

Petitioners invoke the Revisional as also the inherent jurisdiction of this Court to set aside order dated 15.05.2006 of learned Sessions Judge,

Poonch, whereby petitioners had been charged under Sections 302, 120B, 34 R. P. C. and 7/27 Arms Act.

Sh. R. P. Sharma, learned counsel appearing for the petitioners, submits that the trial Court has erred in rejecting the prayer of the petitioners for

reinvestigation of the case and dropping the proceedings in the absence of sanction under Section 197 of the Code of Criminal Procedure.

Learned counsel refers to Sankaran Moitra v/s Sadhna Das and another, reported as 2006 (3) SCALE 414 in support of his submissions that

the proceedings before the learned Sessions Judge, Poonch, need to be quashed in the absence of sanction under Section 197 of the Code of

Criminal Procedure.

I have considered the submissions of .he learned counsel for the petitioners. Learned Sessions Judge, Poonch, has written an elaborate order

dealing with the contentions raised by he petitioners for reinvestigation of the case and regarding issue of sanction under Section 97 of the Code of

Criminal Procedure.

While dealing with the contention of he petitioners regarding reinvestigation, earned Sessions Judge, Poonch, has held as follows:

The grievances of the accused is that the driver of the police vehicle which carried the accused and other S. P. Os to spot has not been arrested

or examined as well as the vehicle has not been seized and investigating officer has not examined all the S. P. Os accompanying the accused.

Apparently these grounds cannot be taken into consideration for directing reinvestigation. More so ever, there must be grievance generally from the

complainant or the prosecution. Once the complainant and prosecutor are satisfied about the investigation, it does not lie in the mouth of the

accused persons to ask for reinvestigation, whatever are the grievance of the accused. These are nothing but defence available to the accused. The

defences of an accused persons cannot be a ground for asking reinvestigation of the case. The accused have no grievances that so far they are

concerned, the investigation is defective. In fact they have grievances that some other person involved in the crime have not been sent for trial.

Who are those persons have not been disclosed by them so that Court could have considered that fact for arriving a conclusion that further

investigation or reinvestigation is required. The nonexamination of all the special Police Officers and the driver of the police vehicle does not afford

any ground to the accused for asking reinvestigation. If there are some lacunas in the prosecution case the accused cannot ask the Court to fill up

such lacuna and nor Section 173 (8) Cr. P. C. takes within its ambit such a defects and lapses.

The judgments cited by the Ld. Defence counsel in support of his request for reinvestigation are distinguish with the facts of the present case and

are of no assistance to him. In all the judgments cited by him the investigation and further investigation was directed when the complainant moved

the Court for defective investigation.

In 2001 Crl. L. J 5190 an investigation launched against Commissioner Income Tax and other persons about his involvement in a corruption

case was closed by C. B. I. At the time of submitting the final report to the Court the C. B. I. wanted the Court to initiate prosecution proceedings

against the complainant for offences under Sections 182 and 211 of the Indian Penal Code.

The Special Judge on receipt of the final report issued notice to the complainant and after hearing him directed reinvestigation of the case by the

C. B. I. This action of the Special Judge was upheld by the Supreme Court. Thus, apparently the facts of the case are different to the facts of the

present case.

Similarly in 2001 Crl. L. J. 1192, which is by full Bench of Dehli High Court a woman was killed where after an FIR was registered in the Police

Station and finally challan under Ss.498A/306 IPC produced before Metropolitan Magistrate. The brother of the deceased was not satisfied with

the investigation so he addressed a letter to the Chief Justice of Delhi High Court that despite the fact that his sister was murdered, the Police

registered an FIR under Sections 498A/306 RFC whereupon this letter was treated as Criminal Writ Petition which was disposed off by making

an observation that brother of the deceased had an alternative remedy of moving the Magistrate for relief and the Magistrate was competent to

order further investigation. Thus in this case there was some complainant coming forward with specific allegations. But in the present case being

handled by the Court there is no complaint on the part of family members of deceased or prosecutor making severe allegations against the

investigator. The son of the complainant had grievance about the previous investigator of Police whereupon reinvestigation was directed by the

DGP which was concluded by Crime Branch. So in this background the judgment of the Hon'ble Delhi High Court cited by the Ld. Defence

counsel is of no assistance to him.

Without burdening this judgment any more with repetition of the facts of the other cases cited by the Ld. Defence counsel it is suffice to say

that such judgments do not help the accused because in such judgments the complainant had approached the Court for reinvestigation of the case.

The Court is also of the considered opinion after going through the record that there is no necessity of reinvestigating the case, the accused

have grievances about some other persons who have not been booked by the police which can be looked into, when evidence comes on record

during the trial, by this Court. The accused have no right to ask the court on flimsy grounds to direct reinvestigation.

While dealing with the question as to whether or not sanction was required under Section 197 of the Code of Criminal Procedure, learned

Sessions Judge, Poonch, has held as follows:

Coming to the question of sanction u/s 197 Cr. P. C. the Court is of the opinion that this section is not applicable to the facts of the present case.

It is not every public servant for whose prosecution a sanction u/s 197 Cr. P. C. is required. The Section is attracted only in respect of a public

servant who is removable by or with the sanction of State Government, so far a SPO is concerned, he is appointed by Sr. Superintendent of Police

and can be only dismissed by him. For removal of S. P. O. no sanction of the State Government is required. Further more the prosecution case

against public servant must be that while acting or purporting to act in discharging of his duties he committed an offence. The prosecution case is

not that the accused No. 3 was sent to spot by any Superior Officer or the accused was on spot while acting in a discharge of his duty. The

accused No. 3 has also not come forward with an admission that he committed the offence while acting or purporting to act in the discharge of his

official duties. There is no material on record to suggest that accused No.3 was deputed to spot to apprehend or kill the militant. The accused have

also not placed on record any copy of the daily register suggesting that the accused along with other S. P. Os was sent to spot. The prosecution is,

however, that accused No. 3 hatched a conspiracy with other accused persons and without informing the police station concerned went to spot

and killed the deceased. Thus the prosecution case suggest that accused No.3 has misused his official position. Had the accused come forward

with an application that he really killed the deceased but while acting and purporting to act in discharge of his duties the situation would have been

otherwise. The court is not award that what will be the defence adopted by the accused when charge is framed against him and trial proceeds. In

all the judgments cited by the Ld. Defence counsel in respect of sanction u/s 197 Cr. P. C., the accused persons had come forward with a written

plea that they committed the offence while acting or purporting to act in discharge of their duties. Thus, these judgments are of no assistance to the

accused No.3.

The accused No.3 has claimed the protection under Ss. 76, 79 and 80 RFC by submitting that whatever he did was by mistake of fact believing

himself bound by law. The Ld. Defence counsel has submitted that accused No.3 was not aware that it is the deceased SubInspector who was

inside the room. Instead he was told by the officers at Police Station, Surankote that some militant is hiding inside the room and as such, when the

door was opened by the deceased, taking him the militant the accused shot him dead.

At the outset it may be submitted that it is the defence raised by the accused No.3. It is not the prosecution case that an information had been

received in Police Station, Surankote about the presence of militant in the house of the deceased Sub Inspector and the accused No.3 was sent to

spot to kill or apprehend the militant. Rather as per prosecution case accused Mohd Bashir with his son hatched conspiracy with accused No.3

and on 6th August, 2004 went to Commando Group, Surankote and requested the accused No.3 and other S. P. Os to follow him to his house

from where the accused persons of the present case along with other S. P. Os went to spot. As per P. W. Ashiq Hussain, S. P. O, when all the S.

P. Os reached the house of Mohd Bashir after taking meals accused No. 1 and 2 along with accused No.3 discussed some matters separately and

thereafter went to the house of the deceased. According to P. W. Naresh Kumar, S. P. O, after reaching the house of the deceased the accused

No.l accompanied by accused No.3 knocked the door of the room where the deceased was sleeping and as soon as the door was opened

accused No.3 fired two gun shots on him and thereafter they along with other S. P. Os came back to the house of accused Mohd Bashir. It is also

in the evidence of the above two S. P. Os that other S. P. Os were standing far away from the house of the deceased along with accused Zahir

Abas.

Thus, the evidence on the record suggests that accused No.3 was not under impression that militant is inside the house and there was some

common understanding with other two accused persons. This evidence has been taken just to reject the contention of the Ld. Defence counsel that

accused by mistake of fact killed the deceased. The observation of the Court shall have no bearing on the merits of the case.

In the light of the discussion rendered above Section 76, 79 and 80 RPC relied upon by the accused also do not come to the assistance of the

accused No.3. The judgments cited by the Ld. Defence counsel are distinguish with the facts and circumstances of the present case and are not, as

such, applicable.

Cognizance of an offence is barred only if the facts on records indicate that the person charged with an offence was accused of the offence

alleged to have been committed by him while acting or purporting to act in the discharge of his official duties.

Plea as to whether or not the cognizance was warranted against an accused in the absence of sanction contemplated under Section 197 of the

Code of Criminal Procedure may be raised by an accused before a trial Court but on the basis of material collected by the investigating agency

during the currency of investigation or on the basis of evidence made available to the Court in a complaint case, as the case may be. If the accused

succeeds in satisfying the Court on the basis of available material on the records that cognizance against him was unwarranted in the absence of

sanction under Section 197 of the Code of Criminal Procedure, the Court seized of the matter is required to consider such plea and decide as to

whether or not Section 197 of the Code of Criminal Procedure was attracted in the case and the process warranted against the accused.

Question of necessity of sanction has to be determined from stage to stage as the case progresses. It may be considered at any stage of the

proceedings and while considering, it may not be necessary for the Court to confine itself to the allegations in the complaint and the Court can take

into consideration all the material on the records at the time the question is raised.

The protection given under Section 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

legislatures 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 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 of the Code of Criminal Procedure 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 purported 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 would be available if the act fall within the scope and range of its official duty.

No universal rule can be laid down to determine that there was a reasonable connection between the act done and the official duty. The surest test

in this regard would be to consider if the omission or negligence on the part of public servant to commit the act complained of could have made him

answerable for a charge of dereliction of its official duty and if the answer to his question was found to be 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.

The aforesaid view was expressed by Hon'ble Supreme Court of India in Centre for Public Interest Litigation and another v/s Union of India and

another, reported as 2005 (7) Supreme 79 and Rakesh Kumar Mishra v/s The State of Bihar and ors; reported as 2006 (1) SC 4.

Judgment cited by Sh. Sharma may not, thus, be of any help to the petitioners because there does not exist any material on the records on the basis

whereof it could be said that they petitioners had committed the alleged offence while acting or purporting to act in the discharge of their official

duties.

Learned Sessions Judge has detailed the material collected by the investigating agency during the currency of the investigation, which shows

that Mohd Bashir accused had illwill and enmity with the deceased SubInspector of Police Mohd Bashir, who was alleged to have harassed the

accused Mohd Bashir and his son Zahir Abas through police and army on the allegations that they had connections with the militants. The evidence

indicate that with this background and view both the two accused namely Mohd Bashir and Zahir Abas had hatched a conspiracy with Mohd Iqbal

and in pursuance to that conspiracy Mohd Bashir accused had gone to Surankote and on some false pretext brought petitioner/accused No.3 with

other S. P. Os to his house at Mastandra, where Zahir Abas was waiting for them and they stayed at the house of Mohd Bashirtill 1.30 and

thereafter they with common object of killing the deceased went to his house, Zahir Abas along with other S.P.Os remained at some distance,

when Mohd Bashir knocked the door and told Mohd Iqbal to shoot the person who opens the door. Mohd Bashir was aware of the fact that

deceased was sleeping in the room. On opening of the door by the deceased, Mohd Iqbal pumped bullets in the body of the deceased, who died

on spot.

I do not find any material at this stage on the records on the basis where a view different from the one taken by the learned Sessions Judge could

have been taken in the case.

I do not find any material on records for exercise of Revisional or inherent jurisdiction of this Court.

This petition is, thus, without any merit, which is, accordingly, dismissed.