TMI Blog2012 (9) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... t be exercised and proceedings must be quashed. Indeed, the instant case is one of such cases where the proceedings initiated against the police personnel need to be quashed. In the circumstances, we dismiss the appeal filed by the complainant Kailashpati Singh. We allow the appeal filed by Om Prakash, Pradeep Kumar, Shyam Bihari Singh and Bharat Shukla and set aside the impugned order to the extent it dismisses Cr filed by them for quashing order dated 14/06/2005 passed by Judicial Magistrate, 1st Class, Jamshedpur, in Complaint Case issuing process against them. - CRIMINAL APPEAL NO. 1491 OF 2012, CRIMINAL APPEAL NO. 1492 OF 2012 - - - Dated:- 26-9-2012 - Aftab Alam Ranjana Prakash Desai, JJ. JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave granted. 2. In both these appeals, by special leave, judgment and order dated 1/5/2006 delivered by the Jharkhand High Court in Criminal Misc. Petition No.822 of 2005 and Criminal Misc. Petition No.640 of 2005 filed under Section 482 of the Criminal Procedure Code (for short, the Code ) is challenged. Criminal Misc. Petition No.640 of 2005 was filed by Shri Rajiv Ranjan Singh, Deputy Superintendent of Police, (Dy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of police encounter. It is the case of the complainant that deceased Munna Singh was not involved in any criminal activities. He used to provide his jeep to people on rent at Jamshedpur and other places and earn his livelihood. According to the complainant, deceased Munna Singh was falsely involved in Sonari P.S. Case No.15 of 1994 dated 6/3/1994 under Section 392 of the Indian Penal Code (for short, the IPC ). As a matter of fact, on that day, he was only 9 years old. The complainant stated that the postmortem report shows that three bullets were found in the chest of deceased Munna Singh indicating that he was killed by the police by firing from close range. The complainant took exception to the fact that the autopsy was not video-graphed. The complainant also contended that the accused committed the offence not in discharge of their official duties, therefore, no sanction was required to prosecute them under Section 197 of the Code. According to the complainant, the accused have thus committed offence under Sections 120-B, 203 and 302 read with Section 34 of the IPC. 4. The other version which also needs to be stated is disclosed from the FIR lodged on 1/7/2004 by one Jeevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. namely that no notification under Section 197(3) of the Code was produced by them protecting them from prosecution in respect of any offence alleged to have been committed while acting or purporting to act in discharge of their official duties, is incorrect. We have been shown a copy of the Notification dated 16/5/1980 issued by the State of Bihar which extends the protection of sub-section (2) of Section 197 of the Code to all the members of the police force as it includes both officers and men. Mr. Gonsalves, learned senior counsel for the complainant has not disputed this position. It is, therefore, not necessary to dilate further on this issue. 9. It would be appropriate to begin with the submissions of Mr. Gonsalves, learned senior counsel appearing for the complainant, because the complainant s case is that his son was killed in a fake encounter. Counsel submitted that the postmortem notes disclose that deceased Munna Singh had received injuries on chest. This is indicative of firing from close range. The nails of deceased Munna Singh were blackened, which militates against the theory of genuine encounter. Counsel submitted that it was necessary for the police to vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that whether there is false encounter or not, must be considered only on the basis of the complaint and testimonies recorded before the charge is framed. No material produced by the accused should be taken into account when there is unimpeachable evidence to show that the police are guilty of false encounter. In such case, sanction is not required. In support of his submissions, counsel relied on the judgment of the Federal Court in Dr. Hori Ram Singh v. Empower[AIR 1939 FC 43] judgments of this court in Matajog Dobey v. H.C. Bhari,[ (1955) 2 SCR 925] Pukhraj v. State of Rajasthan Anr.,[ 1974 (1) SCR 559] Nagraj v. State of Mysore[AIR 1964 SC 269], Raj Kishor Roy v. Kamleshwar Pandey Anr,[ (2002) 6 SCC 543] K. Satwant Singh v. The State of Punjab[1960 (2) SCR 89] and State of Orissa through Kumar Raghvendra Singh Ors. v. Ganesh Chandra Jew[(2004) 8 SCC 40]. Counsel also relied on Zandu Pharmaceutical Works Ltd. Ors. v. Mohd. Sharaful Haque Anr.[(2005) 1 SCC 122] on the question of nature of powers of the High Court under Section 482 of the Code. 11. On the other hand, Mr. Vishwanathan, learned senior counsel appearing for the appellants Om Prakash and Ors. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not contact him and, out of frustration, he along with his associates had attacked his house so that ransom amount could be recovered from him. 13. It is also necessary to refer to the FIR filed by Dy.S.P. Rajiv Ranjan Singh dated 2/7/2004 at 0015 hrs. As per this FIR, on 2/7/2004, he received information at 2125 hours that within Bistupur Police Station, some firing incident had occurred. He along with the task force officers left in a Sumo Car to verify the said information. On verification, he came to know that some criminals riding motor cycles came to the house of one Jeevan Naredi, a businessman dealing in scrap, fired bullets at his house and moved towards Rani Kudar, which comes within the jurisdiction of Kadma Police Station. He along with his police team left the Headquarters to trace the criminals. At that time, he received information that some boys riding motor cycles in a great speed had gone towards Matin Drive. He immediately informed SHO, Sonari D.K. Srivastava about the incident and asked him to start a search for the accused, who had gone towards Matin Drive. He also reached Sonari, Jhunjani. In the light of the Sumo Car, he saw five to six boys standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utara along the Sartua tree 2 nos. iii) Black color Hero Honda Motorcycle (without number plate) Engine no.01B 18M20712 Chassis no.01B20C21175 lying in the west side of the Board of Nirmal Mahto Udyan. iv) A iron made pistol lying along the wheel of motorcycle Made in Western Germany Auto Pistol 57914 marked on the Barrel and Made in Western Germany and Auto Pistol 9 Round CAL 765A 57914 marked on body. Length of the barrel is about 9 fingers and But 6 finger having magazine fitted at the bottom. On opening, one empty cartridge entangled in its chamber and 4 live cartridges of 7.65 bore loaded in the Magazine. v) xxx xxx xxx vi) Near the right hand of deceased Rajeev Dubey, a one barrel country-made .315 bore pistol measuring 8 fingers in length, 5 fingers in body having wooden handle. On opening, KF 8mm mark was found in the barrel. One cartridge entangled in pistol. One live cartridge 8 mm in the right pocket of trouser of Rajeev Dubey and one used cartridge lying near the dead body and two used cartridges 7.65 bore near the head of the dead body. vii) xxx xxx xxx viii) Western-North from here Without number plate Hero Honda Splendor bearing Engine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no reason to doubt the veracity of this seizure memo because it is difficult for the police to concoct such a scene and plant such weapons. 17. From the two FIRs, it is clear that the criminals riding on the motor cycles armed with deadly firearms had attacked the house of businessman Naredi. Naredi lodged a complaint at Vistupur Police Station. Upon receiving information, the police machinery had swung into action. Dy.S.P. Rajiv Ranjan Singh left his office along with his team to trace the criminals. They could trace the criminals. They asked the criminals to surrender. The criminals instead of surrendering fired at them. The police had to launch a counter attack to save themselves and also to nab the criminals, which was their legal duty and in this counter attack, four of the criminals received bullet injuries and succumbed to those injuries. The death of four criminals in the firing was preceded by an attack by them on businessman Naredi s house and also an attack on the police personnel. There is no doubt that the criminals had set out on a mission to attack Naredi s house so as to recover ransom. From the weapons found lying at the scene of occurrence, we feel that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i P.S. Case No.208/02 u/s. 307/34 I.P.C. 27 Arms Act later on converted to u/s. I.P.C. b. Sakchi P.S. Case No.144/03 u/s. 324/307/367/34 I.P.C. and section 27 Arms Act. c. Telco P.S. Case No.85/04 under section 392 of the Indian Penal Code. d. Telco P.S. Case No.109/04 u/s. 379 I.P.C. and section 392 I.P.C. e. Adityapur P.S. Case No.139/04 u/s. 392/411 I.P.C. Accused Bablu Prasad alias Suman Kumar (since deceased). a. Sitaramdera P.S. Case No.62/01 u/s. 379 I.P.C. b. Bistupur P.S. Case No.244/01 u/s. 379 I.P.C. c. Bistupur P.S. Case No.248/01 u/s. 379 I.P.C. d. Sonari P.S. Case No.71/01 u/s.379 I.P.C. e. Sakchi P.S. Case No.179/01 u/s. 379 I.P.C. f. Bistupur P.S. Case No.149/03 u/s. 307/387/34/120(B) IPC and section 27 of the Arms Act. g. Sakchi P.S. Case No.144/03 under sections 324/307/387/34 I.P.C. and 27 Arms Act. h. Parsudhih P.S. Case No.182/03 u/s. 414 I.P.C. and section 25(1- B)(a)/26/35 of the Arms Act. i. Sonari P.S. Case No.12/04 u/ss. 387/326/307/34 I.P.C. and section 27 Arms Act. Accused Prakash Anand alias Ramesh alias Rambo (since deceased). a. Telco P.S. Case No.266/02 u/s. 379 I.P.C. b. Saraikella P.S. Case No.70/02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt of this complaint, NHRC directed CID to conduct an inquiry. Accordingly, Nagendra Choudhary, SP, CID, Jharkhand (Ranchi) conducted the inquiry and submitted his report to the Deputy Inspector General of Police, CID, Jharkhand, Ranchi. The report is exhaustive and we have carefully perused it. From the report, it appears that the Inquiry Officer recorded the statement of Krishan Pratap Singh the brother of deceased Munna Singh. He also recorded the statements of two independent witnesses namely Moni Borker and Vijay Singh. These witnesses have confirmed that the firing incident did take place. The Inquiry Officer also recorded the statements of witnesses to the seizure memo. The report further states that Mr. Sharma, learned Magistrate (Law Order Jamshedpur) came to the spot and prepared the inquest report. Important extracts from the inquest report are noted in the report. So far as the deceased is concerned, the inquest report states that he had bleeding wounds on the right stomach, right leg and near the elbow of the right arm. Injuries appeared to be bullet injuries. Statement of Dr. Prof. Akhilesh Kumar Chaudhary attached to MGM Medical College, Jamshedpur who had perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 02/07/2004 to that effect was given by him to the police. The copy of the receipt is seen by us. It is counter signed by Asha Shankar Singh, brother of deceased Munna Singh. There is on the record a declaration made by the relative of deceased Munna Singh - one Raja Narayan Singh that deceased Munna Singh was cremated at Parvati Ghat, Bistupur, Jamshedpur. The declaration is made on the certificate issued by Parvati Ghat authorities. 23. Mr. Gonsalves contended that deceased Munna Singh s name was shown in a case registered in 1994 when he was only 9 years old. This shows that the police have fabricated a case to show that he was a dreaded criminal. We notice that in the postmortem notes, his age is shown as 28 years. It is not the case of the police that deceased Munna Singh was involved in any case of the year 1994. It is true that in the copy of the letter addressed by Dy.S.P. Jamshedpur to Superintendent of Police, Jamshedpur, Sonari P.S., Case No.15 of 1994 dated 6/3/1994 is shown to have been registered under Section 392 of the IPC against deceased Munna Singh. But as of today, it is the case of the police that he was not involved in this case. Perhaps, the informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the case of the police that in these circumstances three challans were prepared and filed on the same day. These are not challans but final forms. In the circumstances, we are unable to come to a conclusion that this was done purposely with mala fide intention to create record against the deceased. 28. Mr. Gonsalves contended that nails of the deceased were blackened. This is not borne out by the postmortem report or the inquest conducted by the Magistrate. It is true that the postmortem was not videographed. In this case, the Magistrate conducted the inquest. The CID has fully investigated and submitted its report stating that it was a genuine encounter. NHRC is also satisfied with the postmortem. Therefore, it is not possible to infer that post-mortem was not videographed because the police wanted to suppress something. We would like to make it clear that we have independently examined the relevant documents, like FIRs, postmortem notes, inquest report, seizure memo and extracts of FSL report and we are of the view that this is not a case of false encounter. We reject the case of the complainant that the police are guilty of killing deceased Munna Singh in cold blood in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal proceedings. If these allegations cannot be held to relate to any act done or purporting to be done in the execution of his duty by the defendant or the accused as a servant of the Crown, the consent of the authorities would, prima facie, not be necessary for the institution of the proceedings. If, in the course of the trial, all that could be proved should be found to relate only to what he did or purported to do in the execution of his duty, the proceedings would fail on the merits, unless the Court was satisfied that the acts complained of were not in good faith. Even otherwise, the proceedings would fail for want of the consent of the Governor, if the evidence established only official acts. 31. In Matajog Dobey, the Constitution Bench of this court was considering what is the scope and meaning of a somewhat similar expression any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty occurring in Section 197 of the Criminal Procedure Code (Act V of 1898). The Constitution Bench observed that no question of sanction can arise under Section 197 unless the act complained of is an offence; the only poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. The legal position is thus settled by the Constitution Bench in the above paragraph. Whether sanction is necessary or not may have to be determined from stage to stage. If, at the outset, the defence establishes that the act purported to be done is in execution of official duty, the complaint will have to be dismissed on that ground. 32. In Raj Kishor Roy, the appellant had filed a complaint against respondent 1 therein, who was a police officer that he had assaulted him and leveled false charges against him. The Judicial Magistrate, Bhagalpur, issued summons. Respondent 1 filed a petition for quashing the order issuing summons on the ground that sanction under Section 197 of the Code has not been obtained. The High Court quashed the said order on the ground that there was no sanction to prosecute respondent 1. In the facts before it, this court observed that the question whether respondent 1 acted in discharge of his duty, could not have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein was a Sub-Inspector. He along with another person had severely beaten up one Thimma and had wantonly fired from revolver at other persons. It was contended that if the question of sanction is not decided in the very first instance when a complaint is filed or when the accused alleges that he could not be prosecuted for the alleged offences without sanction of the Government, the protection given by law will be nugatory as the object of giving this protection is that the police officer is not harassed by any frivolous complaint. It is important to note that this court in the context of the peculiar facts before it, noted that there may be some such harassment of the accused, but it had no means to hold in the circumstances alleged that the prosecution of the appellant was in connection with such action as the complaint did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise. It is in this background that the court observed that the jurisdiction of this court to proceed with the complaint emanates from what is alleged in the complaint and not from what is finally established in the complaint as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench judgment in Matajog Dobey and several other judgments on the point and rejected the said submission. We must reproduce the relevant paragraph. Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question. This Court also observed that postponing a decision on the applicability or otherwise of Section 197(1) of the Code can only lead to the proceedings being dragged on in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he police have to do their legal duty of arresting the criminals, they have also to protect themselves. Requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. Plea regarding sanction can be raised at the inception. 39. In our considered opinion, in view of the facts which we have discussed hereinabove, no inference can be drawn in this case that the police action is indefensible or vindictive or that the police were not acting in discharge of their official duty. In Zandu Pharmaceutical Works Limited, this Court has held that the power under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of court but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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