TMI Blog2012 (5) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 30.11.2006 passed by the Additional Sessions Judge, Srinagar in File No. 16/Revision of 2006, and by the Chief Judicial Magistrate, Srinagar dated 24.8.2006, rejecting the appellant s application for not entertaining the chargesheet filed by the Central Bureau of Investigation (hereinafter called CBI ). 2. Brief facts relevant to the disposal of this appeal are as under: A. In Village Chittising Pora, District Anantnag, J K, 36 Sikhs were killed by terrorists on 20.3.2000. Immediately thereafter, search for the terrorists started in the entire area and 5 persons, purported to be terrorists, were killed at village Pathribal Punchalthan, District Anantnag, J K by 7 Rashtriya Rifles (hereinafter called as `RR ) Personnel on 25.3.2000 in an encounter. B. In respect of killing of 5 persons by 7 RR on 25.3.2000 at Pathribal claiming them to be responsible for Sikhs massacre at Chittising Pora, a complaint bearing No. 241/GS(Ops.) dated 25.3.2000 was sent to Police Station Achchabal, District Anantnag, J K by Major Amit Saxena, the then Adjutant, 7 RR, for lodging FIR stating that during a special cordon and search operation in the forests of Panchalthan from 0515 hr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigate four cases including the alleged encounter at Pathribal resulting in the death of 5 persons on 25.3.2000. E. The CBI conducted the investigation in Pathribal incident and filed a chargesheet in the court of Chief Judicial Magistrate-cum- Special Magistrate, CBI, (hereinafter called the CJM ) Srinagar, on 9.5.2006, alleging that it was a fake encounter, an outcome of criminal conspiracy hatched by Col. Ajay Saxena (A-1), Major Brajendra Pratap Singh (A-2), Major Sourabh Sharma (A-3), Subedar Idrees Khan (A-4) and some members of the troops of 7 RR were responsible for killing of innocent persons. Major Amit Saxena (A-5) (Adjutant) prepared a false seizure memo showing recovery of arms and ammunition in the said incident, and also gave a false complaint to the police station for registration of the case against the said five civilians showing some of them as foreign militants and false information to the senior officers to create an impression that the encounter was genuine and, therefore, caused disappearance of the evidence of commission of the aforesaid offence under Section 120- B read with Sections 342, 304, 302, 201 RPC and substantive offences thereof. Major Amit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very objective of sanctions is to enable the Army officers to perform their duties fearlessly by protecting them from vexatious, malafide and false prosecution for the act done in performance of their duties. However, it has to be examined as to whether their action falls under the Act 1990. The CJM does not have the power to examine such an issue at the time of committal of proceedings. At this stage, the Committal Court has to examine only as to whether any case is made out and, if so, the offence is triable by whom. Hence, this appeal. 3. Criminal Appeal No. 55 of 2006 has been preferred against the impugned judgment and order dated 28.3.2005 passed by the High Court of Guwahati in Criminal Revision No.117 of 2004 by which it has upheld the order of the Special Judicial Magistrate, Kamrup dated 10.11.2003 rejecting the application of the appellant seeking protection of the provisions of Section 6 of the Armed Forces (Special Powers) Act, 1958 (hereinafter called the `Act 1958 ) in respect of the armed forces personnel. 4. Facts and circumstances giving rise to this appeal are as under: A. In order to curb the insurgency in the North-East, the Parliament ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce dated 30.5.2002 to the appellant i.e. Army Headquarter to collect the said chargesheet. The appellant requested the said Court not to proceed with the matter as the action had been carried out by the Army personnel in performance of their official duty and thus, they were protected under the Act 1958 and in order to proceed further in the matter, sanction of the Central Government was necessary. The learned Special Judicial Magistrate rejected the case of the appellant vide order dated 10.11.2003. Being aggrieved, the appellant preferred the revision petition which has been rejected vide impugned order dated 28.3.2005 by the High Court. Hence, this appeal. 5. As the facts and legal issues involved in both the appeals are similar, we decide both the appeals by a common judgment taking the Criminal Appeal No. 257 of 2011 as a leading case. 6. Shri Mohan Parasaran and Shri P.P. Malhotra, learned Addl. Solicitor Generals appearing on behalf of the Union of India and Army personnel, have contended that mandate of Section 7 of the Act 1990 is clear and it clearly provides that no prosecution shall be instituted and, therefore, cannot be instituted without prior sanction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying of weapons etc. Such an officer has further been empowered to destroy any arms dump, arrest any person without warrant who has committed a cognizable offence and enter and search without warrant any premises to make any arrest. Section 6 of the Act 1990 requires that such arrested person and seized property be handed over to the local police by such an officer. 10. Section 7 of the Act 1990 provides for umbrella protection to the Army personnel in respect of anything done or purported to be done in exercise of powers conferred by the Act. The whole issue is regarding the interpretation of Section 7 of the Act 1990, as to whether the term institution used therein means filing/presenting/submitting the chargesheet in the court or taking cognizance and whether the court can proceed with the trial without previous sanction of the Central Government. 11. The analogous provision to Section 7 of the Act 1990 exists in Sections 45(1) and 197(2) of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C. ). The provisions of Section 7 of the Act 1990 are mandatory and if not complied with in letter and spirit before institution of any suit, prosecution or legal procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he phrase `legal proceedings is to be understood in the context of the statutory provision applicable in a particular case, and considering the preceding words used therein. In Assistant Collector of Central Excise, Guntur v. Ramdev Tobacco Company, AIR 1991 SC 506, this Court explained the meaning of the phrase other legal proceedings contained in Section 40(2) of the Central Excises and Salt Act, 1944, wherein these words have been used after suit and prosecution. The Court held that these words must be read as ejusdem generis with the preceding words i.e. suit and prosecution, as they constitute a genus. Therefore, issuance of a notice calling upon the dealer to show cause why duty should not be demanded under the Rules and why penalty should not be imposed for infraction of the statutory rules and enjoin of consequential adjudication proceedings by the appellate authority would not fall within the expression other legal proceedings as in the context of the said statute. Legal proceedings do not include the administrative proceedings. In Maharashtra Tubes Ltd. v. State Industrial Investment Corporation of Maharashtra Ltd. Anr., (1993) 2 SCC 144, this Court dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court. The question does arise as to whether it simply means mere presentation/filing or something further where the application of the mind of the court is to be applied for passing an order. 14. In M/s. Lakshmiratan Engineering Works Ltd. v. Asst. Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur Anr., AIR 1968 SC 488, this Court dealt with the provisions of U.P. Sales Tax Act, 1948 and rules made under it and while interpreting the proviso to Section 9 thereof, which provided the mode of filing the appeal and further provided that appeal could be entertained on depositing a part of the assessed/admitted amount of tax. The question arose as what was the meaning of the word entertain in the said context, as to whether it meant that no appeal would be received or filed or it meant that no appeal would be admitted or heard and disposed of unless satisfactory proof of deposit was available. This Court held that dictionary meaning of the word entertain was either to deal with or admit to consideration . However, the court had to consider whether filing or receiving the memorandum of appeal was not permitted without depositing the required amount of tax or it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court dealt with the expression institution of a case and held that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. Section 190(1) Cr.P.C. contains the provision for taking cognizance of offence (s) by Magistrate. Section 193 Cr.P.C. provides for cognizance of offence (s) being taken by courts of Sessions on commitment to it by a Magistrate duly empowered in that behalf. This view has been reiterated, approved and followed by this Court in Satyavir Singh Rathi, ACP Ors. v. State through CBI, (2011) 6 SCC 1. 19. A similar view has been reiterated by this Court in Kamalapati Trivedi v. The State of West Bengal, AIR 1979 SC 777, observing that when a Magistrate applies his mind under Chapter XVI, he must be held to have taken cognizance of the offences mentioned in the complaint. Such a situation would not arise while passing order under Section 156(3) Cr.P.C. or while issuing a search warrant for the purpose of investigation. In Devarapalli Lakshminarayana Reddy Ors. v. V. Narayana Reddy Ors., AIR 1976 SC 1672, this Court held that institution means taking cognizance of the offence alleged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4413; Rakesh Kumar Mishra v. State of Bihar Ors., AIR 2006 SC 820; Anjani Kumar v. State of Bihar Ors., AIR 2008 SC 1992; and State of Madhya Pradesh v. Sheetla Sahai Ors., (2009) 8 SCC 617). 23. The question to examine as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation. There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be kept in mind that the cognizance is taken of the offence and not of the offender. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. However, performance of public duty under colour of duty cannot be camouflaged to commit a crime. The public duty may provide such a public servant an opportunity to commit crime and such issue is required to be examined by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State of Andhra Pradesh v. N. Venugopal Ors., AIR 1964 SC 33; State of Maharashtra v. Narhar Rao, AIR 1966 SC 1783; State of Maharashtra v. Atma Ram Ors., AIR 1966 SC 1786; and Prof. Sumer Chand v. Union of India Ors., (1994) 1 SCC 64, came to the conclusion that the prosecution has been initiated on the basis of the FIR and it was the duty of the police officer to investigate the matter and to file a chargesheet, if necessary. If there is a discernible connection between the act complained of by the accused and his powers and duties as police officer, the act complained of may fall within the description of colour of duty. However, in a case where the act complained of does not fall within the description of colour of duty, the provisions of Section 140 of the Delhi Police Act 1978 would not be attracted. 26. This Court in State of Orissa Ors. v. Ganesh Chandra Jew, AIR 2004 SC 2179, while dealing with the issue held as under: .. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l inquiry or even in the course of prosecution evidence may establish the necessity for sanction. The necessity for sanction may surface during the course of trial and it would be open to the accused to place the material on record for showing what his duty was and also the acts complained of were so inter-related or inseparably connected with his official duty so as to attract the protection accorded by law. The court further observed that difference between acting or purporting to act in the discharge of his official duty is merely of a language and not of substance. On the issue as to whether the court or the competent authority under the statute has to decide the requirement of sanction, the court held: Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to the duty cast on the Court, which is the ascertainment of the true nature of the act 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 questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y connected with his official duty will require sanction for prosecution under the said provision. 31. In Parkash Singh Badal Anr. v. State of Punjab Ors., AIR 2007 SC 1274, this Court reiterated the same view while interpreting the phrase official duty , as under: 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 32. In P.K. Choudhury v. Commander, 48 BRTF (GREF), (2008) 13 SCC 229, this Court dealt with the issue wherein an Army officer had allegedly indulged in the offence punishable under Section 166 IPC - public servant disobeying law, with intent to cause i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed. If S. 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void, the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected. (Emphasis added) 34. In Naga People s Movement of Human Rights v. Union of India, AIR 1998 SC 431, the Constitution Bench of this Court while dealing with the issue involved herein under the provisions of Section 6 of the Armed Forces (Special Powers) Act, 1958, held as under: Under Section 6 protection has been given to the persons acting under the Central Act and it has been prescribed that no prosecution, suit or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by the said Act except with the previous sanction of the Central Government. The conferment of such a protection has been assailed on the ground that it virtually provides immunity to persons exercising the powers conferred under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the general criminal law. If, as submitted on behalf of some of the respondents, it is accepted that a private complaint under Section 9(1) is not subject to the rigours of Section 23, then the very purpose of introducing such safeguards lose their very raison d' tre. At the same time, since the filing of a private complaint is also contemplated under Section 9(1) of MCOCA, for it to be entertained it has also to be subject to the rigours of Section 23. Accordingly, in view of the bar imposed under sub-section (2) of Section 23 of the Act, the learned Special Judge is precluded from taking cognizance on a private complaint upon a separate inquiry under Section 156(3) CrPC. The bar of Section 23(2) continues to remain in respect of complaints, either of a private nature or on a police report. In order to give a harmonious construction to the provisions of Section 9(1) and Section 23 of MCOCA, upon receipt of such private complaint the learned Special Judge has to forward the same to the officer indicated in clause (a) of sub-section (1) of Section 23 to have an inquiry conducted into the complaint by a police officer indicated in clause (b) of sub-section (1) and only there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence. The court not only applies its mind to the contents of the complaint/police report, but also proceeds in the manner as indicated in the subsequent provisions of Chapter XIV of the Cr.P.C. (Vide: R.R. Chari v. The State of Uttar Pradesh, AIR 1951 SC 207; and State of W.B. Anr. v. Mohd. Khalid Ors., (1995) 1 SCC 684). 40. In Dr. Subramanian Swamy v. Dr. Manmohan Singh Anr., AIR 2012 SC 1185, this Court dealt with the issue elaborately and explained the meaning of the word cognizance as under: In legal parlance cognizance is taking judicial notice by the court of law , possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially. (Emphasis added) (See also: Bhushan Kumar v. State (NCT of Delhi), (2012) 4 SCALE 191) 41. In State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, this Court explained the meaning of the term the very cognizance is barred as that the complaint cannot be taken notice of or jurisdiction or exercise of jurisdiction or power to try and determine causes. In common parlance, it means taking notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one in pursuance of a power, a thing done under it may have validity though done at a time when the power would not be really exercisable. (Dicker v. Angerstein, 3 Ch D 600) Purporting to be done There must be something in the nature of the act that attaches it to his official character. Even if the act is not justified or authorised by law, he will still be purporting to act in the execution of his duty if he acts on a mistaken view of it. So it means that something is deficient or amiss: everything is not as it is intended to be. In Azimunnissa and Ors. v. The Deputy Custodian, Evacuee Properties, District Deoria and Ors. AIR 1961 SC 365, Constitution Bench of this court held: The word purport has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable ..Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not be so. (Emphasis added) (See also: Haji Siddik Haji Umar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntent from the context. 45. For the aforesaid qualities attached to a duty one can attempt to decipher it from a private act which can be secret or mysterious. An authorised act or duty is official and is in connection with authority. Thus, it cannot afford to be something hidden or nontransparent unless such a duty is protected under some law like the Official Secrets Act. 46. 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 admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial 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. 51. There has to be material to attribute or impute an unreasonable motive behind an act to take away the immunity clause. It is for this reason that when the authority empowered to grant sanction is proceeding to exercise its discretion, it has to take into account the material facts of the incident complained of before passing an order of granting sanction or else official duty would always be in peril even if performed bonafidely and genuinely. 52. It is in the aforesaid background that we wish to record that the protection and immunity granted to an official particularly in provisions of the Act 1990 or like Acts has to be wide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Act. Thus, it is evident from the aforesaid comparative chart that under the provisions of Cr.P.C. and Prevention of Corruption Act, it is the court which is restrained to take cognizance without previous sanction of the competent authority. Under the Act 1990, the investigating agency/complainant/person aggrieved is restrained to institute the criminal proceedings; suit or other legal proceedings. Thus, there is a marked distinction in the statutory provisions under the Act 1990, which are of much wider magnitude and are required to be enforced strictly. 55. Thus, in view of the above, the law on the issue of sanction can be summarised 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry the offender may require the competent military officer to deliver the offender to the Magistrate concerned to be proceeded according to law or to postpone the proceedings pending reference to the Central Government, if that criminal court is of the opinion that proceedings be instituted before itself in respect of that offence. Thus, in case the criminal court makes such a request, the Military Officer either has to comply with it or to make a reference to the Central Govt. whose orders would be final with respect to the venue of the trial. Therefore, the discretion exercised by the Military Officer is subject to the control of the Central Govt. Such matter is being governed by the provisions of Section 475 Cr.P.C. read with the provisions of the J K Criminal Courts and court-martial (Adjustment of Jurisdiction) Rules, 1983. Rule 6 of the said Rules, 1983, provides that in case the accused has been handed over to the Army authorities to be tried by a court-martial, the proceedings of the criminal court shall remain stayed. Rule 7 thereof, further provides that when an accused has been delivered by the criminal court to the Army authorities, the authority concerned shall in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 125 of the Army Act, the stage of making option to try an accused by a court-martial and not by the criminal court is after filing of the chargesheet and before taking cognizance or framing of the charges. 63. A question has further been raised by learned counsel for the appellant that the Act 1990 is a special Act and Section 7 thereof, provides full protection to the persons who are subject to the Army Act from any kind of suit, prosecution and legal proceedings unless the sanction of the Central Government is obtained . Thus, in such a fact-situation, even if the Commanding Officer exercises his discretion and opts that the accused would be tried by the courtmartial, the proceedings of court-martial cannot be taken unless the Central Government accords sanction. 64. Learned counsel for the CBI and interveners have opposed the submission contending that in case the accused are tried in the court-martial, sanction is not required at all. The provisions of the Act 1990 would apply in consonance with the provisions of the Army Act. Section 7 of the Act 1990 does not contain non-obstante clause. Therefore, once the option is made that accused is to be tried ..... X X X X Extracts X X X X X X X X Extracts X X X X
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