HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved on 01.10.2015 Judgment Delivered on 06.11.2015 Court No. - 40 A.F.R. Case :- CRIMINAL MISC. WRIT PETITION No. - 18093 of 2012 Petitioner :- Shankar Lal Jatav Respondent :- State Of U.P. & Others Counsel for Petitioner :- L.C. Srivastava,I.C.Srivastava,Neeraj Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Bala Krishna Narayana,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered By Hon'ble Mrs. Vijay Lakshmi, J.) By means of this writ petition, the petitioner has prayed to issue a writ in the nature of certiorari quashing the impugned Government Order dated 29.07.2011, whereby respondent no. 1, Special Secretary Government of Uttar Pradesh, has refused to grant sanction for prosecution of respondent nos. 2 to 4, who all are police personnel. The petitioner has also prayed for issuance of a writ in the nature of mandamus commanding respondent no. 1 to reconsider the grant of sanction for prosecuting respondent nos. 2 to 4 keeping in view the report dated 14.08.2008 of the investigation conducted by Additional Superintendent of Police, and to award compensation to petitioner for the atrocities done by police officials (respondent nos. 2 to 4) against him.
Affidavits have been exchanged between the parties.
Heard and perused the record.
The background facts in brief are that the petitioner, who belongs to Scheduled Caste (Jatav), after his retirement from the post of Clerk U.P.S.R.T.C. settled at his native place Village Chitaura, P.S. Shamshabad, District Agra. Finding some financial irregularities committed by the then Village Pradhan, namely, Smt. Usha Devi he made a complaint against her alleging misappropriation of Gaon Sabha funds. On inquiry Usha Devi was found guilty. Due to this, the brother-in-law of Usha Devi, namely, Lakhan Singh got annoyed with the petitioner and started harassing him. On 28.02.2008, on the instigation of Lakhan Singh, some members of Banjara (Nat) community, attacked the petitioner's son and brother, namely, Lalit and Ram Charan causing serious injuries to them. They also tried to kill them by firing, however, the injured had a narrow escape. The petitioner took both the injured persons and the eyewitnesses to the police station and requested the S.H.O. (respondent no. 2) to lodge F.I.R. against the accused persons, but respondent no. 2 tore the application and directed the petitioner to remove the allegation of firing from the F.I.R. The petitioner has alleged that respondent no. 2 forced the petitioner to write another application as per his dictation. Meanwhile, the brother-in-law of the Gram Pradhan (Lakhan Singh) reached there and after talking aloof with the S.H.O. for about 15 minutes came out crying loudly "Chamar Dherh Sale Farji Complaint Karne Aya Hai ". Addressing the mother, sister and daughter of the petitioner by name and using filthy language against them, Lakhan Singh directed respondent nos. 3 and 4 to catch hold the hands of the petitioner and to tie him with 'Neem' Tree standing in compound of police station. The petitioner was tied up with the tree. Thereafter, the S.H.O. (respondent no. 2) started beating the petitioner with a danda, when the first danda got broken the S.H.O. picked up another danda and continued to beat the petitioner till the petitioner sustained fracture in his right hand and the staff present at police station started to oppose the S.H.O.. After beating, the petitioner was thrown into police lockup and was later released and medically examined on the condition that the allegation of beating be attributed to the members of Banjara community. In order to save his life and under compelling circumstances petitioner agreed to it. Taking benefit of this situation, the S.H.O. lodged the F.I.R. based on entirely concocted story. In the medical examination of the petitioner 17 injuries caused by blunt and hard object were found and on X-ray, fracture on the left metacarpal bone of the petitioner was found. Deep cuts in his left knee and left ankle were also found. According to the petitioner, aforesaid incident of torture and high handedness of police was published in daily newspaper on the next day. The petitioner has annexed the newspaper cuttings as Annexure-3 to the writ petition. The petitioner made complaint against the police officials respondent nos. 2 to 4, but when the local administration did not pay any heed, the petitioner approached National Commission for Scheduled Caste at Delhi and on interference of National Commission, a criminal case was registered against the police officials and private accused Lakhan Singh. The Commission also directed that the investigation of the case be done by some I.P.S. Officer.
The matter was investigated by the then A.S.P., Agra who found the respondent nos. 2 to 4 guilty. On 08.06.2008 a request was sent by him to the D.I.G. Police for grant of sanction against respondent nos. 2 to 4 along with case diary and other relevant documents, but no order was passed by the D.I.G. In absence of grant of sanction, charge sheet in this case could not be filed and on 09.10.2011 the I.O. submitted closing report showing the reason for not filing charge sheet against the police persons because of denial of grant of sanction and the Court was requested to take cognizance against accused Lakhan Singh only.
Under these circumstances, the petitioner filed Writ Petition No.20194 of 2011 seeking mandamus to direct the State to pass appropriate orders regarding sanction of prosecution, which was dismissed by this Court by the following order dated 13.02.2012:-
"Heard learned counsel for the parties.
The petitioner has claimed a mandate to the respondent no. 2 to pass appropriate order for sanction of prosecution against respondent nos. 5 to 7 in Case Crime No. 75 of 2008, under sections 323, 325, 504 and section 3(1)(X) SC/ST Act, Police Station Shamshabad, District Agra.
Learned A.G.A. has produced a copy of the government order dated 29.07.2011 which shows that the sanction has been refused by the state government.
In view of the aforesaid, cause of writ petition does not survive.
Accordingly, the writ petition is dismissed. Interim order, if any, is vacated."
The petitioner filed a review application before respondent no. 1 for reconsideration of grant of sanction, but to no avail.
In the backdrop of these facts the petitioner has approached this Court by means of instant writ petition challenging the validity of the impugned order passed by Special Secretary refusing to grant sanction for the prosecution.
Learned counsel for the petitioner has submitted that despite the fact that there was sufficient evidence against respondent nos. 2 to 4 for their prosecution and the then A.S.P., Agra who had investigated the case had sent letter dated 08.06.2008 requesting the D.I.G. Police to do the needful for grant of sanction, the respondent no. 1 passed the impugned order ignoring all these facts.
To the contrary, learned counsel for the respondents has contended that the respondent nos. 2 to 4 being police officials and government servants, the protection under Section 197 Cr.P.C. is available to them, therefore, cognizance cannot be taken against them without sanction of State Government.
While drawing our attention to the para14 of counter affidavit filed by respondent no. 5 i.e. Secretary, Home Department, Government of U.P., Lucknow, learned counsel has submitted that it was found by Home Department that the allegations and counter allegations of causing and receiving injuries were between private parties in Case Crime No. 36 of 2008 and 36A of 2008. It was further found that the witnesses present in the premises of concerned police station had denied any such occurrence. Hence in absence of any strong and conclusive evidence sanction was denied.
A perusal of order-sheet reveals that vide order dated 13.5.2014 passed in the instant case, this court had asked the respondent no. 3 to explain whether the State is authorised to decide as to whether the trial should fail for want of substantial evidence ? In reply to the aforesaid query respondent no. 5 in paras 20 and 21 of counter affidavit has admitted that the ultimate analysis of evidence is to be done by the concerned trial court which is the competent authority to conclude about the guilt or innocence of any accused person.
In the counter affidavit filed by respondent no. 6 this fact has been admitted that after due investigation, the concerned Investigating Officer came to the conclusion that respondent nos. 2 to 4 and one another person Lakhan Singh had committed offence under sections 323, 325, 504 I.P.C. and section 3(1)(X) SC/ST Act and as such the charge sheet was forwarded against the accused Lakhan Singh on 15.03.2010, he being a private person but the accused respondent nos. 2 to 4 being police officials, a report seeking sanction for their prosecution was forwarded to the competent authority for appropriate order. It has also been admitted by respondent no. 6 that the concerned Investigating Officer had sent few reminders for seeking sanction for prosecution. Ultimately, order dated 29.07.2012 was passed by the Home Department rejecting the said request.
In order to appreciate the rival contentions reference to Section 197 of Code of Criminal Procedure in necessary, which reads:
"Prosecution of Judges and public servants. -(I) 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-
(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, or the State Government."
(2) xxxx (3) xxxx (3A) xxxx (3B) xxxx (4) xxxx"
Bare reading of Section 197 Cr.P.C. shows that for its applicability, merely to be a public servant is not enough. It has to be further shown (i) that such public servant is or was not removable from office save by or with the sanction of the Government and (ii) that the alleged offence should have been committed by him while acting or purporting to act in discharge of his official duties. All these conditions must exist before Section 197 Cr.P.C. can be invoked.
The answer to the question as to which public servant is removable from his office with the sanction of government, depends on the fact as to who is appointing authority. If his / her appointing authority is the Governor (in case he / she is a State employee or the President (in case he / she is a Central employee) in that case only, sanction of Government is required. The petitioner has filed copy of Notification No. 4021/Chh-pu-1-08-115/2008, Lucknow: Dated 02 December, 2008 relating to the selection, promotion, training, appointment, determination of seniority and confirmation etc. of Constables and Head Constables of the Civil Police in Uttar Pradesh Police Force, which discloses that the 'appointing authority' for the Constables in Civil Police is the Superintendent of Police and the Deputy Inspector General of Police for other posts.
Learned counsel for the petitioner has also filed the amended Notification No. 201/VI-pu-10-09-27(60)/2009, Lucknow Dated April 02, 2009 which provides that the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) service comprises group 'B' posts namely Inspector and group 'C' posts namely Sub-Inspector. Rule 3(b) of it provides that 'appointing authority' means the Deputy Inspector General of Police, Uttar Pradesh.
In the present case, respondent nos. 2 to 4 all are police officials, working in Uttar Pradesh, so they come within the purview of aforesaid regulation. Respondent no. 2 was S.H.O. of P.S. Shamshabad, Agra at the time of occurrence, respondent no. 3 Constable Agya Ram, who was then posted at P.S. Shamshabad, Agra and respondent no. 4 is Driver Constable, who was also posted at P.S. Shamshabad, Agra at the time of occurrence. The appointing authority of all these respondents is either Superintendent of Police or Deputy Inspector General of Police and they are removable from their posts by their appointing authority, hence there is no requirement for grant of sanction in view of the clear provisions of Section 197 Cr.P.C. Rejecting similar arguments, the Apex Court in Nagraj vs. state of Mysore, held that a sub-Inspector of Police, who was below the grade of Assistant Superintendent, could be dismissed by Inspector General of Police, by virtue of Section 26 of the Mysore Police Act, therefore, no sanction of the State Government for his prosecution was necessary, even if, he had committed an offence while acting or purporting to act in discharge of his official duty.
Next requirement of Section 197 Cr.P.C. is that the alleged act must have been committed by him while acting or purported to act in the discharge of his official duty. Law in this regard is also well settled. The Supreme Court in B. Saha vs. M.S. Kochar; 1979 AIR 1841, after examining several earlier decisions held that, "the words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, no part of an official duty can be to commit an offence It can never be so, In the wider sense, these words would take under their umbrella every act constituting an offence committed in the course of the same transaction, in which the official duty is performed or purports to be performed. The question whether the offence was committed in the course of official duties or under colour of official duties, would depend on the facts of each case."
In the aforesaid case the Apex Court held that sanction of appropriate government was not necessary for prosecution of appellants under Section 409/120-B I.P.C. because the alleged act of criminal appropriation was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of offence having no direct connection or inseparable link with their duties as public servants.
In the present case, the acts complained of constitute grave offences under the Penal Code. In no case these acts can be said to have been done in discharge of official duty. It can never be the official duty of any public servant to mercilessly beat any person so as to cause him fracture.
For the foregoing reasons, the petition deserves to be allowed and is allowed. Accordingly, the impugned Government Order dated 29.07.2011 is quashed.
The State is directed to pass fresh orders with regard to sanction in the light of observations made here in above.
Order Date :- 06.11.2015 NS