Shila Devi vs State of U.P.

Heard P.K. Upadhyay, counsel for the petitioner and V.C. Mishra, Advocate General on behalf of the State as well as other respondent authorities. Petitioner seeks quashing of the order dated 23.5.2013 passed by Principal Secretary, Home, Government of U.P., Lucknow whereby he has refused to grant sanction for prosecution of three police personnel in Case Crime No. 829 of 2010 under Sections 306, 506, 323, 120B IPC.

Facts in short as on record of the present writ petition are as follows:

FIR being Case Crime No. 829 of 2010, under Sections 306, 506, 323, 120B IPC, P.S. Kerakat, District-Jaunpur was registered on 20.10.2010, by Smt. Shila, mother of the deceased Yogendra Kumar. In the FIR it was mentioned that her son Yogendra Kumar was forced to commit suicide because of the undue pressures brought upon him by his accused wife as well as by constables Prabhu Nath Ram, Madhusudan Mishra and S.I., Vikas Pandey, In-Charge of the police outpost-Gaddi.

The case was investigated by civil police, a charge-sheet was filed against the wife of the deceased only. The informant-mother filed Writ Petition No. 23269 of 2010 alleging therein that the investigation has not been done in free and fair manner because of the involvement of the police officers as detailed above. The investigation had not been done in the right direction with specific reference to the suicide note recovered near the dead body of the deceased as well as in respect of the deceased being called at the police station and being asked to wait for long periods and being harassed by the police officers without making any mention of the same in the G.D.

The High Court after considering the facts pleaded by the mother and after affording opportunity to the prosecution and the State-respondents, it came to a conclusion vide order dated 22.7.2011 that the investigation has not been done by the Investigating Officer in right direction specifically with reference to the suicide note and summoning of the victim to the police outpost on 18.10.2010 and 20.10.2010 where he is alleged to have been tortured. The details of his being called to the police outpost were not mentioned in the G.D. of the respective dates. In the totality of the facts on record the High Court went on to pass following orders:

"The investigation has not been made by the I.O. on the basis of the suicide note but during the pendency of the writ petition the I.O. completed the investigation in which the charge-sheet has been proposed only against Smt. Reena Devi, wife of the deceased, but this Court has directed not to submit any police report before the Court concerned till further order of this Court, at this stage it is not proper to discuss all the facts and the allegations but the circumstances are of such nature in which for ensuring the fair investigation, the investigation of the above mentioned case is required to be done by the investigating agency other than the local police because the allegations have been made against three police personnel of the same police station where the alleged occurrence has taken place. Therefore, we direct that the investigation of case crime No. 829 of 2010 under Sections 306, 506, 323 and 120-B IPC, P.S. Kerakat, District-Jaunpur shall be done by the C.B.C.I.D. The S.P. Jaunpur is directed to ensure that shall be handed over to C.B.C.I.D. Forthwith, who shall submit the police report after completing the investigation before the Court concerned.

Accordingly the writ petition is finally disposed of."

In terms of the order of the High Court C.B.C.I.D. proceeded with the investigation. It prepared a draft police report. Thereafter, C.B.C.I.D. made an application to the State Government vide letter dated 3 December 2012 for sanction being granted for the prosecution of the police officers. The said application was accompanied with the details of the investigation done by the C.B.C.I.D. On receipt of the said application it appears that the Principal Secretary, Home, U.P. Government, who was competent person to sanction prosecution, asked for a report from the Law Department of the State of U.P. Special Secretary (Law) & Additional Legal Remembrances, Government of U.P., Lucknow submitted a report on 23.5.2013 i.e. after six months of the receipt of the application for sanction of the prosecution. On the basis of said legal opinion the Principal Secretary, Home has proceeded to pass the order dated 23.5.2013 impugned in the petition. He has refused to grant sanction for prosecution, the reason assigned in the order for the purpose reads as follows:

Before we address ourselves to the report of the Special Secretary (Law) & Additional Legal Remembrances it may be recorded that the order of the Principal Secretary, Home does not even refer to the report of the Special Secretary (Law) & Additional Legal Remembrances.

It is settled law that the orders are to be judged for the reasons recorded therein. From the order of the State Government dated 23.5.2013 it is clear that the only reason disclosed is that on the basis of the evidence available on the records, the chances of offence being brought home against the police officers are minimal. Therefore, sanction for prosecution is being refused.

We may record that, from page 9 of the report of the C.B.C.I.D., which has been enclosed as Annexure No. 1 alongwith the counter-affidavit filed on behalf of the State, sufficient facts and materials have been disclosed for charge-sheet being filed against the police officers and the matter being investigated against them also.

In paragraphs 10(2) and 10(3) of the report of C.B.C.I.D., the explanation of the police officers, the reason for not accepting the same and the evidence relied upon in support of the conclusion drawn by the C.B.C.I.D. has specifically been mentioned alongwith the recommendation in the matter.

The relevant portion of the report of the C.B.C.I.D. is being quoted herein below:

From the order of the State Government, it is apparently clear that there has been complete non application of mind to the facts disclosed in the report of the C.B.C.I.D. alongwith the evidence collected and reasons assigned for investigation being done against the police officers also.

Now turning to the Annexure-CA-2 of the counter-affidavit i.e. report of the Special Secretary (Law) & Additional Legal Remembrances, Government of U.P., Lucknow, which is alleged to be the basis for passing the order impugned. We may record that the report runs in two and half pages. The first two pages deals with the investigation done by the civil police, which was not accepted by the High Court as per its judgment dated 22.7.2011 referred to above and investigation was directed through C.B.C.I.D. The facts upto that stage are not of much relevance. The later part of the report contains the judgment of Supreme Court, which deals with protection to be provided to the officers. It is the law applicable.

The consideration of the report of the C.B.C.I.D. is only in the last paragraph of the opinion of Rangnath Pandey, Special Secretary (Law) & Additional Legal Remembrances, Government of U.P., Lucknow, which reads as follows:

We have no hesitation to record that such reports, which do not even take into consideration as to what has been found and recorded by the C.B.C.I.D. in its report seeking prosecution, is patently unjust. The opinion appears to be tailor-made to suit only the interest of the police officers involved. Even the order of the High Court dated 22.7.2011 and its impact has gone unnoticed in the report of Special Secretary (Law) & Additional Legal Remembrances, Government of U.P., Lucknow.

From the records we find that for six months no action was taken in the matter of passing of the orders in respect of the application to sanction for prosecution made by the C.B.C.I.D. It was only when a contempt petition was filed before the High Court being Contempt Petition No. 2689 of 2012 that the State Government got an opinion from the Special Secretary (Law) & Additional Legal Remembrances noted above. Thereafter, the Special Secretary (Law) & Additional Legal Remembrances, Government of U.P., Lucknow has proceeded to refuse the sanction for prosecution. We may record that the date fixed in the contempt proceedings for decision being taken on the request of the C.B.C.I.D. was 27.5.2013.

In the aforesaid circumstances we feel it just and proper to quash the order dated 23.5.2013. It is ordered accordingly.

Having regard to the report of the C.B.C.I.D. we direct the Principal Secretary, Home, Government of U.P., Lucknow to revisit the matter and act in accordance with law preferably within a period of two weeks of the receipt of a certified copy of this order. It may only to be noticed that the High Court in its order dated 22.7.2011 quoted above had specifically directed that the report shall be submitted by the C.B.C.I.D. to the Court concerned.

So far as Rangnath Pandey, Special Secretary (Law) & Additional Legal Remembrances, Government of U.P., Lucknow is concerned, he is a judicial officer on deputation with the State Government. He is cautioned to be more careful in future.

Learned Additional Government Advocate has placed reliance upon the judgment in the case of State of Maharashtra Through C.B.I. Vs. Mahesh G. Jain,

We have gone through the judgment and we find that the same is clearly distinguishable in the facts of the case. Writ petition is allowed with aforesaid observations.