1. By means of Criminal Misc. Case No.3855 of 2013 filed under Section 482 of Criminal Procedure Code (in short "Cr.P.C."), the petitioner Siya Ram Saran Aditya has challenged the order dated 16.08.2013 passed in Criminal Revision No.164 of 2012 by the Additional Sessions Judge/ Special Judge (SC/ ST Act), Lucknow, whereby the criminal revision preferred by the petitioner has been dismissed affirming the order 26.03.2012 passed in Case No.3/ 12, R.C. No.7(S)/ 2008, under Sections 147, 148, 302, 307, 342, 504, 506 IPC, Police Station CBI (ACB), Lucknow by the Special Judicial Magistrate (CBI), Lucknow by which the protest petition filed by Sri Ram Gopal (complainant) was accepted and summoned the petitioner along with other co-accused persons under Sections 34, 304(2) and Section 326 IPC.
2. Petitioners of Criminal Misc. Case No.5430 of 2013 filed under Section 482 of Cr.P.C. have also prayed for quashing of the order dated 26.03.2012, whereby they have been summoned under the said sections by the learned special Judicial Magistrate (CBI), Lucknow.
3. As common question of law and facts arise in both these petitions filed under Section 482 of Cr.P.C. and arises out of common impugned judgment and order, therefore, both the petitions are being decided together by this common judgment and order.
4. In the year 2007, the then Government had put a ban on the Students' Union Elections in the entire State of U.P. On 08.01.2008, a protest against ban had been started by a Political Party on the Foundation Day Function of Jai Narain Post Graduate College, Lucknow under the supervision of Political Party's Youth Wing-Samajwadi Chhatrasabha. The Police Authorities after taking into consideration the aggressiveness of the protesters started Lathi charge and as a result whereof, one of the leaders, namely, Sunil Singh and some others were received injuries and they were admitted in the Hospital. Some other protesters were arrested and sent to jail.
5. After the aforesaid incident in order to protest Sri Shiv Pal Singh Yadav (Ex-Minister) and Sri Akhilesh Yadav (Ex-Chief Minister) along with other party members sat on Dharna in front of the office of the Superintendent of Police, Lucknow on the same day i.e. 08.01.2008. On the very next day, on 09.01.2008, a news item was flashed in print and electronic media with regard to pushing Sri Shiv Pal Singh Yadav in a van and slapping him by the police personnel. Thereafter, Political Party had announced a massive protest across the State on 09.01.2008 to register their anger against the alleged police highhandedness including the alleged misbehave with Sri Shiv Pal Singh Yadav.
6. Sri Syed Mohammad Abbas the then Station Officer, Police Station Saifai, District Etawah had received an information with regard to blockage of road before the Chaudhary Charan Singh P.G. College, Hewra which resulted into a heavy traffic jam. The Station Officer along with other police personnel reached there and found that about 400-500 students and public persons blocked the road. The Station Officer, Police Station, Saifai while trying to convince the students and controlled the situation, the Additional Superintendent of Police, Sri Ram Pal Gautam along with other personnel reached there and tried to pacify the matter but the students instead of stopping Dharna started abusing and pelting stones on the police party. The Senior Superintendent of Police also reached at the place of Dharna and asked the unlawful assembly to vacate the site but they did not pay any heed to the request of the then Senior Superintendent of Police and started firing on the police personnel. It is said that in self defence and since no other effective option left, the police force had also fired and as a result whereof, two persons were received injuries on their persons in which one of the injured, namely, Mukesh had died.
7. Sri Syed Mohammad Abbas, Station Officer, Police Station Saifai, District Etawah had lodged a first information report in Case Crime No.01 of 2008, under Sections 147, 148, 149, 342, 504, 336, 307, 353, 332, 427, 435, 504 IPC and Section 7 of the Criminal Law (Amendment) Act and in Crime No.02 of 2008, under Sections 25/ 27 of the Arms Act and arrest several persons who were the members of unlawful assembly.
8. After concluding investigation, the Investigating Officer had submitted charge-sheet on 19.02.2008 in Case Crime No.01 of 2008 against 20 persons upon which the learned Magistrate had taken cognizance vide orders dated 01.03.2008 and summoned the accused persons. In the aforesaid incident, a magisterial inquiry was also conducted and in the magisterial inquiry, it was found that none of the police officials were responsible for the said incident.
9. The Complainant Sri Ram Gopal had filed an application under Section 156(3) of Cr.P.C. with the allegation that on 09.01.2008 at about 11:30 A.M., the petitioners Siya Ram Saran Aditya posted as Senior Superintendent of Police along with Additional Superintendent of Police Sri Ram Pal Gautam, Head Constable Malkhan Singh, Constable Rajiv Dubey, Constable Shri Krishna Saini and Constable Sanjiv Kumar Gautam along with others had entered into the premises of the College and had taken away some of the students. It is also alleged that on protest made by the student, the Senior Superintendent of Police and the Additional Superintendent of Police started abusing and exhorted the police personnel to fire, as a result whereof, three students, namely, Mukesh, Avnish and Sunil had suffered firearm injuries.
10. The aforesaid application under Section 156(3) of Cr.P.C. filed by Sri Ram Gopal was allowed and an FIR was registered as Case Crime No.1-B of 2008, under Sections 147, 148, 149, 302, 307, 342, 506, 504 IPC on 01.03.2008. After concluding investigation, the Investigating Officer had submitted final report, against which, complainant Ram Gopal had approached this Court at Allahabad by way of filing Criminal Misc. Writ Petition No.6589 of 2008. The Co-ordinate Bench of this Court vide an ad-interim order dated 11.11.2008 had directed for entrustment of the investigation to the Central Bureau of Investigation with a further direction to transfer the Senior Superintendent of Police and the Additional Superintendent of Police from Etawah. It had also been directed that during the course of investigation, the Officers named in the FIR shall not be arrested. The said writ petition was dismissed for want of prosecution vide order dated 29.09.2010.
11. In compliance of the direction of this Court, the Central Bureau of Investigation had registered a formal case as R.C. No.7(S) of 2008 and applied for sanction under Section 197 of Cr.P.C. which was refused by the State Government vide order dated 03.12.2010. Thereafter, after completing investigation, the Central Bureau of Investigation had submitted its Closure Report under Section 173 of Cr.P.C. on 24.12.2010 in the court concerned and prayed for acceptance of the same. Against the Closure Report, the Complainant Ram Gopal has submitted an objection on 19.04.2011 with a prayer to reject the closure report and summoned the accused persons. The learned Magistrate concerned after considering the reply submitted by the Central Bureau of Investigation and the objection of the complainant, vide impugned order dated 26.03.2012, summoned the petitioners as accused for the offences punishable under Section 34, 304(2), 326 IPC. The order dated 26.03.2012 had been challenged by the petitioner Siya Ram Saran Aditya in Criminal Revision No.164 of 2012 before the learned Sessions Judge, which had been dismissed vide impugned order dated 06.08.2013 by the learned Additional Sessions Judge/ Special Judge (SC/ ST Act), Lucknow. In the meantime, vide order dated 31.08.2012, the State Government has granted sanction under Section 197 of Cr.P.C. to prosecute the petitioners and other persons.
12. Learned Counsel for petitioners have submitted that the Central Bureau of Investigation after registering the case had applied for sanction against the petitioners but the same had been refused by the Government. Thereafter, the Central Bureau of Investigation filed its closure report before the concerned Magistrate. In the meantime, the Government has been changed due to fresh election and the matter was again put up before the State Government for sanction of the prosecution without placing any fresh material. The State Government having found that as the learned Magistrate has already taken cognizance in the matter, so there is no need to grant sanction but it has also been stated that in order to avoid any technicality in the progress of trial, it would be appropriate to grant sanction for prosecution to the petitioners and accordingly, the sanction has been granted, which is not permissible in the eyes of law as the prosecution has failed to place any fresh material.
13. It has further been submitted by learned Counsel for the petitioners that once the sanction for prosecution under Section 197 of Cr.P.C. has been refused, the subsequent sanction might have not been granted by the State Government on the same material which were produced before the Sanctioning Authority, as such the subsequent sanction dated 31.08.2012 is nothing but only to harass the petitioners. In support of his submissions, learned Counsel for the petitioners have relied upon the judgment rendered by the Hon'ble Supreme Court in the case of State of Himachal Pradesh vs. Nishant Sareen; (2010) 14 SCC 527, in which it has been held by the Apex Court that where, after the refusal of the sanction once, if no material was produced for the second sanction, it ought to have challenged the order of the Sanctioning Authority but that was not done. Learned Counsel have further placed reliance on the judgment rendered by the Apex Court in the case of State of Army Head Quarter vs. CBI; (2012) 6 SCC 228, in which it has been held by the Apex Court that the question as to whether the act complained off, is done in performance of the duty or in purported performance of the duty is to be determined by the competent authority and not by the Court. The legislature has conferred the absolute power on the statutory authority to accord sanction or withhold the same and the Court has no role in this subject. In such a situation, the court would not proceed in absence of prosecution sanction, and therefore, the order passed by the learned Magistrate concerned is liable to be quashed.
14. It has been contended by learned Counsel for petitioners that the order passed by the State Government refusing to accord sanction was not challenged either by the Central Bureau of Investigation or by the complainant Ram Gopal before any forum or before any court of law, therefore, the subsequent sanction order passed by the State Government in absence of new material is illegal and arbitrary. Learned Magistrate failed to consider the provisions of Section 132 of Cr.P.C. which provides protection against the prosecution.
15. Per contra, the learned Counsel appearing on behalf of the Central Bureau of Investigation has vehemently opposed the submissions made by learned Counsel for petitioners and has submitted that the Central Bureau of Investigation has concluded the investigation in most scientific and objective manner by engaging experts of Central Forensic Science Laboratory, New Delhi and All India Institute of Medical Sciences, New Delhi to arrive at the truth vis-a-vis allegations made against the petitioners. It is further submitted that CBI conducted the investigation without favouring to any person and without being influenced by anyone. He has further submitted that the order passed by the learned Judicial Magistrate taking cognizance of the offence as well as the order of the learned Additional Sessions Judge/ Special Judge (S.C./ S.T. Act), Lucknow dated 6.8.2013 upholding the cognizance taken by the learned Judicial Magistrate for the offences, is according to the judicial process of law.
16. Learned Counsel for the complainant has submitted that on 09.01.2008, while the complainant was discharging his duties in the College on 09.01.2008 at about 11:30 AM, the petitioners along with other police personnel entered into the premises of the College and taking away the innocent students forcibly. The other students of the College protested against the act of the police personnel and after hearing the hue and cry of the students, the complainant and the Principal of the College also came out and they also started protest. The petitioners instigated other police personnel to kill the students, as a result whereby, three students namely, Mukesh Singh, Avnish and Sunil had sustained fire armed injuries and out of which, Mukesh Singh succumbed to the injuries.
17. It has further been submitted by learned Counsel for the complainant that after investigation, the Central Bureau of Investigation has found that the accused persons have committed serious offence under sections 34, 304(ii) IPC and section 326 IPC. He has again submitted that in the instant case, the sanction for prosecution is not required as the killing of the innocent person cannot be said to be anyway connected with the discharge of official duty.
18. It has again been submitted by the learned Counsel for the complainant that in the instant case, the Central Bureau of Investigation was not supposed to ask sanction for prosecution as the offence committed by the petitioner and other accused persons cannot be said to be connected with the discharge of official duty. Further, since the petition before the Hon'ble Court was kept pending for monitoring, there was no need for obtaining sanction and also, the petitioner may raise the said question of sanction during the trial. So far as section 132 Cr.P.C. is concerned, it falls within Chapter-X of Cr.P.C. and provides for Maintenance of Public Order and Tranquility. It is submitted that the Section 132 of Cr.P.C. comes when previous sections of the aforesaid Chapter i.e. Sections 129 to 130 Cr.P.C. are applicable.
19. It has also been submitted by learned Counsel for the complainant that a perusal of the order dated 31.08.2012 shows that after considering the entire material in detail and examining the matter afresh as also subsequent developments, the sanction for prosecution has been granted. It has consistently been held by Hon'ble Supreme Court as well as this Court that litigants are supposed to approach the Court with clean hands and if a litigant does not come to the court with clean hands is not entitled for any discretionary relief from any of the court.
20. I have heard learned Counsel for the parties and perused the record.
21. The following issues are required to be adjudicated while deciding the instant petition under Section 482 of Cr.P.C.:
"(I). Whether the act done by petitioners in the present case was within the official capacity in discharge of their official duty?
(II) Whether prior sanction under Section 197 of Cr.P.C. is necessary in the present case before prosecuting the petitioners?
(III) Whether the charge-sheet could be submitted against the petitioners without prior sanction under Section 197 of Cr.P.C.?
(IV) Whether the court concerned has committed legal error in taking cognizance and summoning the petitioners to face trial in absence of valid / prior sanction under Section 197 of Cr.P.C.?
(V) Whether the firing in which one person died and other sustained firearm injury was justified?"
22. The situation was such that if the police had not opened fire, there was apprehension of death or grievous injury to the police personnel. It was in the exercise of the right of private defence falling under Section 99 of the Indian Penal Code. In such an event, the question is whether the act of petitioners was referable to the delegation of sovereign power of the State is available. For dealing of this aspect, it would be useful to refer certain statutory provisions which governs maintenance of public order and tranquility. Chapter X of Cr.P.C. has laid down the procedure that is required to be followed in the dispersal of unlawful assemblies either by the use of civil force or armed force. Section 129 reads thus:
"129(1). Any Executive Magistrate or officer in charge of police station or, in the absence of such officer in charge, any police officer, not below the rank of a sub-inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly.
(2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law."
23. Sections 130 to 132 relate to the use of armed forces to disperse the unlawful assembly which are not material for our purpose as the services of the armed forces were not requisitioned. Section 132 deals with protection against prosecution for acts done under the aforesaid Sections. Under sub-section (1) of Section 132, no prosecution against any person for any act purporting to be done under Sections 129, 130 or 131 shall be instituted in any Criminal Court excepting with the sanction of the Central Government where such person is an officer or member of the armed forces; or with the sanction of the State Government in any other case. Similarly, no Executive Magistrate or Police Officer acting under any of the said Sections in good faith or no person doing any act in good faith in compliance with a requisition under Section 129 or Section 130 shall be deemed to have thereby committed an offence (Section 132 (2)(a) and (b)). Sub-section (3) of Section 132 defines "armed forces" to mean the military, naval and air forces operating as land forces and includes any other armed forces of the Union so operating. Suffice it to note that Section 129 is attracted in the instant case and any Executive Magistrate or officer in-charge of the Police Station or, in the absence of such officer in charge, any police officer not below the rank of a Sub-Inspector may command any unlawful assembly to disperse. If such a command given under sub-section (1) is not obeyed, then such force as may be necessary may be used to disperse the assembly.
24. These are some of the salutary instructions given to the police officers and men who are called upon to control riotous mobs and to disperse them. Section 129 of Cr.P.C. makes it amply clear that only an Executive Magistrate or Officer in charge of a Police Station or in the absence of such Officer in charge, any police officer not below the rank of a Sub-Inspector has the power to command an unlawful assembly to disperse, it is clear from these various safeguards against reckless use of force that officers with some responsibility should command use of force including one of firing to disperse an unlawful assembly.
25. In the instant case, the Senior Superintendent of Police and the Additional Superintendent of Police along with others are present on the spot and the firing was opened by the police personnel on the direction of the petitioner Siya Ram Saran Aditya as it was necessary to take an action or to open a fire for the disbursal of the unlawful assembly. It is abundantly clear from the facts and circumstances of the case that opening of fire was on the direction of the petitioner Siya Ram Saran Aditya, which is not below the rank of Inspector, after examining the situation on the spot. The facts of the case clearly shows that the petitioner Siya Ram Saran Aditya who was the then Senior Superintendent of Police are present on the spot and took decision to open fire and accordingly firing was done after examining the situation and necessity of the said act.
26. For examining Issue No.I, 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. What I must 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 the official duty, though possibly in excess of the needs and requirements of the situation.
27. The act must fall within the scope and range of the official duties of the public servant concerned. 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 this 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.
28. 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 cut as to what extent and how far is a public servant working in discharge of his duties or purported to discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 197 of Cr.P.C. 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. The protection given under Section 197 of Cr.P.C. 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.
29. 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 the Supreme Court in the case of Matajog Dubey Vs. H.C. Bhari; AIR 1956 SC 44, which is as under:
"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 ... 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."
30. The nexus between the discharge of the public duty and the offending act or omission must be inseparable. The obvious reason is to balance the public good and efficiency of the performance of the public duty by a public servant and the legitimate and bona fide grievance of an aggrieved person. Sometimes while discharging or purported to discharge the public duty, the officer may honestly exceed his limit or pass an order or take a decision which may later be found to be illegal, etc. Therefore, the prior sanction by the appropriate Government is an assurance to a public servant to discharge his official functions diligently, efficiently and honestly without fear or favour, without having haunt of later harassment and victimization, so that he would serve his best in the interest of the public.
31. The offending act must be integrally connected with the discharge of duty and should not be fanciful or pretended. If the act complained of is directly, and inextricably connected with the official duty, though it was done negligently, or in dereliction of duty or in excess thereof, Section 197 and similar provisions operate as a canopy against malicious, vexatious or frivolous accusation or prosecution at the hands of the aggrieved persons. It is well settled law that public servant can only be said to act or purported to act in the discharge of his official duty if his act or omission is such as to lie within the scope of his official duty.
32. In the instant case, the petitioner Siya Ram Saran Aditya along with other petitioners, who was the then Senior Superintendent of Police, had reached at the place where the students and other people was sitting on Dharna and blocked the road. The petitioner tried to convinced them to vacate the road but the crowed stood aggravated and started pelting stones upon the police personnel. Some of them opened fire on the police personnel while they are discharging their official duty. In order to maintain law and order and on the defence, the police personnel on the direction of the petitioner Siya Ram Saran Aditya had also opened fire, as a result whereof, one died and some others are injured. It is crystal clear from the facts stated above that the petitioners were at the place of incident in his official capacity and during that time he was the Senior Superintendent of Police, therefore, being the senior most police officer at the place of incident, it was the duty of the petitioner Siya Ram Saran Aditya to maintain law and order of the said locality.
ISSUES NO.II & III
33. Whether court below has erred grievously in taking cognizance of the above case against the petitioners as the opposite parties/ prosecuting agency failed to obtain the sanction under Section 197 (1) of Cr.P.C. against the petitioners who had nexus to official duty only in complexity with their work as police official. In the absence of the valid sanction under Section 197 (1) of Cr.P.C., the case is void abinito.
34. Section 197 of Cr.P.C. reads as follows:
"197. Prosecution of Judges and public servants - (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 [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013] -
(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, 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:
[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.
[Explanation.-- For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, Section 376-A, Section 376-C, Section 376-D or Section 509 of the Indian Penal Code.] (2). No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3). The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
[(3-A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3-B). Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
35. The protection given under Section 197 of Cr.P.C. 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.
36. The applicability of Section 197 of Cr.P.C. needs careful consideration. In Bakhshish Singh Brar Vs. Smt. Gurmej Kaur and another; AIR 1988 SC 257, the Hon'ble Supreme 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."
37. In P.K. Pradhan Vs. State of Sikkim; (2001) 6 SCC 704, the Hon'ble Supreme Court held as follows:
"The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government 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 a 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. 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."
38. The offences led in Section 197 of Cr.P.C. is that no court shall take cognizance of offence against a public servant alleged to have committed while acting or purported to act in the discharge of official duty, except with previous sanction of the appropriate Government. The object behind prior sanction is to prevent malicious, vexatious and unnecessary harassment to a public servant by laying false or frivolous accusation or prosecution. In other words Section 197(1) and related sections intended to immune a public servant who discharges his duties honestly and diligently from the threat of prosecution. Honest discharges of public duty would impinge adversely of the interests, acts or omissions of private persons who would be prone to harass in criminal proceedings and prosecution to demoralize a public servant.
39. In Yusofalli Mulla Vs. The King; AIR 1949 PC 264, the Privy Council was examined whether failure to obtain sanction affected the competence of the Court to try the accused. A Court cannot be competent to hear and determine a prosecution the institution of which is prohibited by law and the institution of a prosecution in the absence of a proper sanction. The Magistrate was no doubt competent to decide whether he had jurisdiction to entertain the prosecution and for that purpose to determine whether a valid sanction had been given, but as soon as he decided that no valid sanction had been given, the Court became incompetent to proceed with the matter. Their Lordships agree with the view expressed by the Federal Court in Basdeo Agarwalla Vs. King Emperor; AIR 1945 FC 16 that a prosecution launched without a valid sanction is a nullity.
40. The Federal Court in Basdeo Agarwalla's case (supra), summed up the legal position regarding the effect of absence of a sanction in the following words:
"In our view the absence of sanction prior to the institution of the prosecution cannot be regarded as a mere technical defect. The clause in question was obviously enacted for the purpose of protecting the citizen, and in order to give the Provincial Government in every case a proper opportunity of considering whether a prosecution should in the circumstances of each particular case be instituted at all. Such a clause, even when it may appear that a technical offence has been committed, enables the Provincial Government, if in a particular case it so thinks fit, to forbid any prosecution. The sanction is not intended to be and should not be an automatic formality and should not so be regarded either by police or officials. There may well be technical offences committed against the provisions of such an Order as that in question, in which the Provincial Government might have excellent reason for considering a prosecution undesirable or inexpedient. But this decision must be made before a prosecution is started. A sanction after a prosecution has been started is a very different thing. The fact that a citizen is brought into Court and charged with an offence may very seriously affect his reputation and a subsequent refusal of sanction to a prosecution cannot possibly undo the harm which may have been done by the initiation of the first stages of a prosecution. Moreover in our judgment the official by whom or on whose advice a sanction is given or refused may well take a different view if he considers the matter prior to any step being taken to that which he may take if he is asked to sanction a prosecution which has in fact already been started."
41. In the case of Budha Mal vs. State of Delhi [Criminal Appeal No.17 of 1952 disposed of on 3/10/1952], the Hon'ble Apex Court clearly ruled that absence of a valid sanction affected the competence of the Court to try and punish the accused.
42. The object of the provisions of Section 197 of Cr.P.C. is to prevent public servant from undue harassment. The sanction is in the nature of safeguard provided to public servant of his being illegally and falsely harassed, impleaded and then prosecuted. Therefore, on the reading of above provision of law, it can be gathered that the object of getting sanction from the competent authority is to protect the public servant from discharge of his official duty without fear and favour.
43. It is the duty of the prosecution to produce necessary record to establish that after application of mind and consideration thereof to the subject the grant or refusing to grant sanction was made by the appropriate authority. At any time before the Court takes cognizance of the offence, the order of sanction could be made. It is settled law that issuance of the process to the accused to appear before the court is sine quo non of taking cognizance of the offence. The emphasis of Section 197(1) of Cr.P.C. or other similar provisions that "no court shall take cognizance of such offence except with the previous sanction" posits that before taking cognizance of the offence alleged, there must be before the court the prior sanction given by the competent authority. Therefore, at any time before taking cognizance of the offence, it is open to the competent authority to grant sanction and the prosecution is entitled to produce the order of sanction.
44. If the sanction is not valid and legal or not granted by the competent authority and even if the prosecution has not sought sanction to prosecute the accused for the offence punishable under the provisions of Indian Penal Code, it is fatal to the case of the prosecution. Therefore, if the Investigating Officer was not successfully get sanction against the accused as required under Section 197 of Cr.P.C., he may not chose to file charge-sheet against the accused for the commission of offences punishable under the provisions of Indian Penal Code.
45. Admittedly, in the present case on hand, the accused being a Police Officer while maintaining the law and order was discharging the official duty. Therefore for initiation of prosecution, the sanction under Section 197 of Cr.P.C. is required whereas in the present case the charge-sheet was filed against the accused persons in absence of any valid sanction.
ISSUES NO.IV & V
46. In the case of General Officer Commanding, RashtriyaRifles Vs. Central Bureau of Investigation and another; (2012) 6 SCC 228, the Apex Court while dealing "Good Faith" has observed as under:
"69. A public servant is under a moral and legal obligation to perform his duty with truth, honesty, honour, loyalty and faith etc. He is to perform his duty according to the expectation of the office and the nature of the post for the reason that he is to have a respectful obedience to the law and authority in order to accomplish the duty assigned to him.
70. Good faith has been defined in Section 3(22) of the General Clauses Act, 1897, to mean a thing which is, in fact, done honestly, whether it is done negligently or not. Anything done with due care and attention, which is not mala fide, is presumed to have been done in good faith. There should not be personal ill-will or malice, no intention to malign and scandalise. Good faith and public good are though the question of fact, it required to be proved by adducing evidence. (Vide: Madhavrao Narayanrao Patwardhan Vs. Ram Krishna Govind Bhanu; AIR 1958 SC 767, Madhav Rao Jivaji Rao Scindia Vs. Union of India; (1971) 1 SCC 85, Sewakram Sobhani v. R.K. Karanjiya; (1981) 3 SCC 208, Vijay Kumar Rampal v. Diwan Dev; AIR 1985 SC 1669, Deena v. Bharat Singh; (2002) 6 SCC 336 and Goondla Venkateswarlu v. State of A.P.; (2008) 9 SCC 613).
73. Performance of duty acting in good faith either done or purported to be done in the exercise of the powers conferred under the relevant provisions can be protected under the immunity clause or not, is the issue raised. The first point that has to be kept in mind is that such a issue raised would be dependent on the facts of each case and cannot be a subject matter of any hypothesis, the reason being, such cases relate to initiation of criminal prosecution against a public official who has done or has purported to do something in exercise of the powers conferred under a statutory provision. The facts of each case are, therefore, necessary to constitute the ingredients of an official act. The act has to be official and not private as it has to be distinguished from the manner in which it has been administered or performed.
74. Then comes the issue of such a duty being performed in good faith. ''Good faith' means that which is founded on genuine belief and commands a loyal performance. The act which proceeds on reliable authority and accepted as truthful is said to be in good faith. It is the opposite of the intention to deceive. A duty performed in good faith is to fulfil a trust reposed in an official and which bears an allegiance to the superior authority. Such a duty should be honest in intention, and sincere in professional execution. It is on the basis of such an assessment that an act can be presumed to be in good faith for which while judging a case the entire material on record has to be assessed.
75. The allegations which are generally made are, that the act was not traceable to any lawful discharge of duty. That by itself would not be sufficient to conclude that the duty was performed in bad faith. It is for this reason that the immunity clause is contained in statutory provisions conferring powers on law enforcing authorities. This is to protect them on the presumption that acts performed in good faith are free from malice or ill will. The immunity is a kind of freedom conferred on the authority in the form of an exemption while performing or discharging official duties and responsibilities. The act or the duty so performed are such for which an official stands excused by reason of his office or post.
76. It is for this reason that the assessment of a complaint or the facts necessary to grant sanction against immunity that the chain of events has to be looked into to find out as to whether the act is dutiful and in good faith and not maliciously motivated. It is the intention to act which is important.
77. A sudden decision to do something under authority or the purported exercise of such authority may not necessarily be predetermined except for the purpose for which the official proceeds to accomplish. For example, while conducting a raid an official may not have the apprehension of being attacked but while performing his official duty he has to face such a situation at the hands of criminals and unscrupulous persons. The official may in his defence perform a duty which can be on account of some miscalculation or wrong information but such a duty cannot be labelled as an act in bad faith unless it is demonstrated by positive material in particular that the act was tainted by personal motives and was not connected with the discharge of any official duty. Thus, an act which may appear to be wrong or a decision which may appear to be incorrect is not necessarily a malicious act or decision. The presumption of good faith therefore can be dislodged only by cogent and clinching material and so long as such a conclusion is not drawn, a duty in good faith should be presumed to have been done or purported to have been done in exercise of the powers conferred under the statute."
47. Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have reasonable connection inter-relationship or inseparably connected with discharge of his duty, he becomes entitled for protection of sanction. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the Court. The Legislature has conferred "Absolute Power" on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation, the court would not proceed without sanction of the competent statutory authority.
48. From the facts of the case, in hand, the road was blocked by unsocial elements before Chaudhary Charan Singh P.G. College, Hewra which resulted into a heavy traffic jam, then Station Officer along with other police personnel reached there and tried to convince the people, who had created the blockage on the road, and tried to control the mob but everything is in vain. On the information received from the then Station Officer, the Additional Superintendent of Police reached there and tried to pacify the matter with the mob and requested to stop Dharna on the road but the mob become uncontrolled and started pelting stones on the police party. The mob had started firing on the police personnel and, therefore, the situation had become uncontrolled and then the competent police officers i.e. Senior Superintendent of Police and Additional Superintendent of Police, who are present at the time of incident on the spot, having no other effective option left directed for firing in self defence, as a result whereof, two persons were received injuries on their persons and out of which one died. The entire incident of firing by the police personnel was only in order to maintain law and order and while directing for firing, the Competent Officer has followed the procedure as prescribed in the Police Mannual. No extra force was applied and the said unfortunate incident has taken place only for the purpose of maintaining the law and order which were become serious at that time. The action had been taken place as per the procedure prescribed in law and the police mannual while discharging official duty.
49. As per the record, for the abovesaid incident, the Magisterial inqury was conducted and in that Magisterial inquiry, it was found that none of the police officials are responsible for the said incident.
50. There are crucial question is whether the High Court, in exercise of its extra-ordinary jurisdiction under Section 482 of Cr.P.C., would interfere and quash the charge-sheet and the cognizance order of the trial court.
51. In the case of Punjab Vs. Mohd. Iqbal Bhatti; (2009) 17 SCC 92, the Hon'ble Apex Court while considering the question whether the State has any power of review in the matter of grant of sanction in terms of Section 197 of the Code has observed as under:
"6. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts.
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An order refusing to grant sanction may attract judicial review by the superior courts. 7. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidences may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the superior courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered." 52. The Hon'ble Supreme Court in Mohd. Iqbal Bhatti's case (Supra) then noticed the opinion of the High Court which was recorded as follows: "9. ....... Once the Government passes the order under Section 19 of the Act or under Section 197 of the Code of Criminal Procedure, declining the sanction to prosecute the concerned official, reviewing such an order on the basis of the same material, which already stood considered, would not be appropriate or permissible." 53. While affirming the above opinion of the High Court, Hon'ble Apex Court in paras 20 and 21 of the Mohd. Iqbal Bhatti's case (supra) has observed as under: "20. It was, therefore, not a case where fresh materials were placed before the sanctioning authority. No case, therefore, was made out that the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. If the clarification sought for by the Hon'ble Minister had been supplied, as has been contended before us, the same should have formed a ground for reconsideration of the order. It is stated before us that the Government sent nine letters for obtaining the clarifications which were not replied to." 21. The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise." 54. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorized to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. In my opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course. 55. After perusal of the entire documents on record as well as the submissions made by learned Counsel for the parties, I find that there is no prima facie case is made out on merits and chances of ultimate conviction is bleak. It is settled law that when the documents relied on by the respondents demonstrate that no prima facie offence is made out on the face value of those materials, then the criminal prosecution should not be allowed to continue and, therefore, it should be quashed, and in such a situation and circumstances, the petitioner who had got a right under the Constitution for the protection of their liberty have rightly approached this Court and this Court in these circumstances has no option left except to grant the relief as prayed by the petitioner. 56. In view of above, the order dated 16.08.2013 passed by the Additional Sessions Judge/ Special Judge (SC/ ST Act), Lucknow in Criminal Revision No.164 of 2012 and the order 26.03.2012 passed by the Special Judicial Magistrate (CBI), Lucknow in Case No.3/ 12, R.C. No.7(S)/ 2008, under Sections 147, 148, 302, 307, 342, 504, 506 IPC, Police Station CBI (ACB), Lucknow are quashed. The petitions under Section 482 of Cr.P.C. are allowed.