Bombay High Court
Vipul Aggarwal vs Central Bureau Of Investigation ... on 22 July, 2016
Bench: Anuja Prabhudessai
Cri. revn appln 377-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICTION NO. 377 OF 2015
Vipul Agarwal
Age 38 years, presently res. at
Joint Director's Bungalow,
Gujarat Police Academy,
Karai, Gandhinagar,
Gujarat. ..Applicant (Accused no.24)
v/s.
1. Central Bureau of Investigation,
SCB, Mumbai
2. State of Maharashtra. ..Respondents
Mr. M.V.Thorat for the Applicant.
Mr.Sandeep Shinde, Addl.PP a/w. Y.M.Nakhwa, for the Respondent no.1.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
RESERVED ON : 17th OCTOBER, 2015.
DATED : JULY 22, 2016.
JUDGMENT.
1. The applicant herein, who was the superintendent of Police at
Banaskantha, District Gujarat, has been arrayed as accused No.24 in
Sessions Case No. 177/2013 @ 178/2013 @ 577/2013 @ 312/2014 for
offences under sections 120B r/w. 302 and 201 of the IPC. The applicant
had filed an application at Exh.509 for dropping the proceedings for want
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of sanction under section 197 of the Cr.P.C. By another application at
Exh.549 the applicant had prayed for discharge on the ground that there
was no prima facie material to show his involvement in the crime. The
learned Sessions Judge having examined the matter did not find any merit
in any of the contentions raised by the applicant and consequently
dismissed both these applications by a common order dated 7.4.2015. The
applicant has not challenged the dismissal of his discharge application, but
by this application he has challenged the order of dismissal of application
at Exh. 509.
2. Learned Counsel Shri Thorat for the applicant has submitted that the
applicant being a Superintendent of Police is a public servant and that an
offence has been registered against him for the acts committed by him in
discharge of his official duty. He contends that in terms of Section 197(2)
of Cr.P.C. the learned Sessions Judge could not have taken cognizance of
the offence without prior sanction of the Government. Learned Counsel
Shri Thorat has relied upon the decisions in the case of :
(1) D.T.Virupakshappa Vs. C. Subhash AIR 2015 SC 2022
(2) Omprakash & Ors. v/s. State of Jharkhand (2012) 12 SCC 72.
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(3) State of H.P. v/s. M.P.Gupta (2004) 2 SCC 349.
(4) State of Maharashtra Vs. Dr. Buddhikota Subharao.(1993)3SCC 339.
3. The Learned PP Shri Shinde has submitted that in exercising powers
under section 227 Cr.P.C. the learned Sessions Judge upon consideration of
the record of the case, and the documents submitted therewith, and after
hearing the submissions of the applicant and the prosecution in this behalf,
has held that there is sufficient ground for proceeding against the applicant
for the offence of criminal conspiracy. He has submitted that the Applicant
having failed to challenge the said findings cannot now contend that the
acts attributed to him were committed in discharge of his official duty.
Relying upon the judgment of Rajib Ranjan & ORs. Vs. Vijaykumar
(2015) 1 SCC 513 the learned PP Shri Shinde contends that a public servant
who enters into a criminal conspiracy or indulges into criminal misconduct
while discharging his official duties is not entitled for protection under
Section 197(2) of the Cr.P.C.
4. I have perused the records and considered the submissions advanced
by the learned counsel for the Applicant and the learned PP for the State.
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Before considering the rival contentions it would be advantageous to refer
to Section 197 of the Code which reads as under:
"Prosecution of Judges and public servant. (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 ofence 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, of the
State Government.
(2) No Court shall take cognizance of any offence alleged
to have been committed by any member of the Armed Forces
of the Union while acting or purporting to act in the discharge
of his official duty, except with the previous sanction of the
Central Government.
(3) ..."
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5. A plain reading of this provision makes it clear that Section 197
Cr.P.C. postulates that if any offence is alleged to have been committed by a
public servant who cannot be removed from the office except by or with the
sanction of the Government, the Court is precluded from taking cognizance
of such offence except with the previous sanction of the competent authority
specified in this provision. The sanction, however, is necessary if the
offence alleged against public servant is committed by him "while acting or
purporting to act in the discharge of his official duties".
6. In Devinder Singh & Ors vs State Of Punjab Through CBI on 25
April, 2016, the Apex court after considering the previous pronouncements
including State of H.P. v. M.P.Gupta, Omprakash v. State of Jharkhand,
State of Maharashtra Vs.Dr. Buddhikota and Veerupaksha v. C. Subhash has
summarized the principles emerging from its previous decisions as under :
I. Protection of sanction is an assurance to an honest and
sincere officer to perform his duty honestly and to the best of
his ability to further public duty. However, authority cannot be
camouflaged to commit crime.
II. Once act or omission has been found to have been
committed by public servant in discharging his duty it must be
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given liberal and wide construction so far its official nature is
concerned. Public servant is not entitled to indulge in criminal
activities. To that extent Section 197 CrPC has to be construed
narrowly and in a restricted manner.
III. Even in facts of a case when public servant has exceeded in
his duty, if there is reasonable connection it will not deprive him
of protection under section 197 Cr.P.C. There cannot be a
universal rule to determine whether there is reasonable nexus
between the act done and official duty nor it is possible to lay
down such rule.
IV. In case the assault made is intrinsically connected with
or related to performance of official duties sanction would be
necessary under Section 197 CrPC, but such relation to duty
should not be pretended or fanciful claim. The offence must be
directly and reasonably connected with official duty to require
sanction. It is no part of official duty to commit offence. In case
offence was incomplete without proving, the official act,
ordinarily the provisions of Section 197 CrPC would apply.
V. In case sanction is necessary it has to be decided by
competent authority and sanction has to be issued on the basis
of sound objective assessment. The court is not to be a
sanctioning authority.
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VI. Ordinarily, question of sanction should be dealt with at the
stage of taking cognizance, but if the cognizance is taken
erroneously and the same comes to the notice of Court at a later
stage, finding to that effect is permissible and such a plea
can be taken first time before appellate Court. It may arise at
inception itself. There is no requirement that accused must wait
till charges are framed.
VII. Question of sanction can be raised at the time of framing
of charge and it can be decided prima facie on the basis of
accusation. It is open to decide it afresh in light of evidence
adduced after conclusion of trial or at other appropriate stage.
VIII. Question of sanction may arise at any stage of
proceedings. On a police or judicial inquiry or in course of
evidence during trial. Whether sanction is necessary or not may
have to be determined from stage to stage and material brought
on record depending upon facts of each case. Question of
sanction can be considered at any stage of the proceedings.
Necessity for sanction may reveal itself in the course of the
progress of the case and it would be open to accused to place
material during the course of trial for showing what his duty
was. Accused has the right to lead evidence in support of his
case on merits.
IX. In some case it may not be possible to decide the question
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effectively and finally without giving opportunity to the defence
to adduce evidence. Question of good faith or bad faith may be
decided on conclusion of trial.
7. In the light of the above principles the question, which falls for
determination, is whether the acts attributed to the applicant are directly
related to the official duties of the applicant.
8. The present case pertains to fake encounter of Tulsidas Prajapati, who
was a key witness in Sohrabuddin murder case. The case of the prosecution
in brief is that some police officers from Gujarat & Rajasthan had entered
into a criminal conspiracy to nab and kill one Sohrabuddin. In furtherance
of the said conspiracy, some of the police officers from Gujarat went to
Hyderabad and with the aid of some police officers from Hyderabad, they
intercepted a luxury bus in which Sorabuddin, his wife Kausarbi and
Tulsiram Prajapati were traveling. They took all the three into their
custody. Sorabuddin was allegedly killed in a fake encounter on
26.11.2004. Some days later, Kausarbi was also killed and her body was
disposed off.
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9. Rubabuddin, the brother of Sohrabuddin wrote a letter dt.14.1.2006
to the Hon'ble the Chief Justice of India to direct an enquiry into his
brother's death and disappearance of his sister-in-law Kausarbi, The
Hon'ble Supreme Court of India directed the Director General of Police,
Gujarat to enquire into the matter. Pursuant to the directions of the Apex
Court, an enquiry was conducted and it was revealed that Sohrabuddin was
allegedly killed in a fake encounter and that some days later his wife
Kausarbi was also killed. The case was investigated by Gujarat police and
a charge sheet was filed on 16.7.2007 against 13 persons.
10. Tulsidas Prajapati was a close associate of Sohrabuddin. He was
allegedly used to locate and abduct Sohrabuddin and his wife Kausarbi, and
was thus being a material witness against the Police personnel he was kept
under control by arresting him in Crime No.214 of 2004 at Hatipur Police
Station, Udaipur. It is alleged that the accused were monitoring the
movements of Tulsiram Prajapati and were in touch with each other. On
10.12.2005 Gujarat Police in C.R.No.1124 of 2004 (popular builder firing
case) took Tulsiram Prajapati on production warrant to Ahmedabad. During
the police remand, Mr. D.G.Vanzara (A2), who was one of the main
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conspirators in eliminating Sohrabuddin, personally interrogated Tulsiram
Prajapati. It is alleged that Tulsiram Prajapati had questioned the accused
Vanzara about the fake encounter of Sohrabuddin and that Vanjara (A2)
had threatened to eliminate him if he broached the said incident before
anyone. It is alleged that Tulsiram Prajapti apprehended that he would be
killed in a fake encounter. He expressed his apprehension to his nephew
Kundan Prajapati, the Addl. Judicial Magistrate, Udaipur, the District
Collector, Udaipur and National Human Rights Commission.
11. It is alleged that since the accused were aware that Tulsiram Prajapati
was a material witness, in order to shield themselves from the grave
implication of abduction and murder of Sohrabuddin and his wife, they
hatched a conspiracy to abduct and murder Tulsiram Prajapati. In
furtherance of the said criminal conspiracy, on 26.12.2006, the Special
Police deputed to escort Tulsiram Prajapati brought him to Ahmedabad and
lodged him in Sabarmati Central Jail. After the video conference his
custody was handed over to the escort party headed by Narayan Singh (A8)
and others. These accused handed over the custody of Tulsiram to two
unknown persons and they proceeded to Udaipur and conveyed that
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Prajapati had escaped from their custody. They also lodged a false report
in respect of the said incident. It is alleged that Mr.Dinesh Kumar, SP
Udaipur had called the applicant and informed him about the alleged
fleeing of Tulsram Prajapati.
12. On 28.12.2006 the deceased Prajapati was brought by two unknown
persons to the scene of offence in handcuffed position. The accused no.7
Ashish Pandya fired at him with his service revolver and thereafter fired a
shot on his left arm by country made revolver and placed the said revolver
near the body of Tulsiram. Subsequently, Ashish Pandya lodged FIR No.
115 of 2006 against Tulsiram Prajapati and two unknown persons. Thus
during the pendency of investigation in Sohrabuddin encounter case,
Tulsidas Prajapati was killed in an alleged fake encounter within the
jurisdiction of Ambaji Police Station in District Banaskantha, Gujarat.
13. In the meantime, not being satisfied with the investigation in
Sohrabuddin murder case conducted by CID Crime- Gujarat, Rubabuddin
filed a writ petition before the Apex Court with a request to direct the CBI
to investigate the crime afresh. He also sought registration of an offence
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and investigation by the CBI into the alleged encounter of Tulsiram, By
order dated 12.1.2010 in W.P.No.6 of 2007 the Hon'ble Supreme Court
directed the CBI to investigate into the matter. In the said decision, the
Apex Court expressed that the alleged killing of Tulsiram Prajapati could be
the part of the same conspiracy and directed the CBI to unearth the larger
conspiracy. Pursuant to the said directions, the CBI Authorities took over
the investigation of the said crime and registered a fresh FIR on 1.02.2010.
After conducting further investigation, CBI filed a charge sheet on
23.07.2010, in which in addition to 13 accused named in the charge sheet
filed by Gujarat police another 6 accused were named as accused being part
of a larger conspiracy. By order dated 27.9.2012 in transfer application filed
by CBI, the Apex Court transferred Sohrabuddin murder case to Mumbai.
14. In the meantime, the statement of the applicant was recorded by State
CID in Tulsiram Prajapati encounter case and sometime on 30.4.2010 the
Investigating Officer filed a report before JMFC, Danta Court stating that
Prajapati was killed in a fake encounter case. The applicant came to be
arrested by CID Crime, Gujarat in the said crime on 3.5.2010. The CID
Crime Gujarat filed chargesheets on 30.7.2010 and 31.07.2010 against the
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applicant and the other police personnel for entering into criminal
conspiracy and causing death of Tulsiram Prajapati.
15. Narmadabai, the mother of Tulsiram Prajapati had filed a petition
(Criminal Writ Petition No.115 of 2007) before the Apex Court alleging
that the officials of Rajasthan and Gujarat police had killed her son on
27/28th.10.2006 in a fake encounter and sought for transfer of investigation
to CBI. The applicant herein was one of the respondents in the said writ
petition.
The Hon'ble Supreme Court by order dated 8.4.2011 in Writ
Petition (Cri) No. 115 of 2007 entrusted the investigation to CBI and
directed the CBI to investigate the case relating to the killing of Tulsidas
Prajapati. Pursuant to the directions of the Apex Court, CBI Authorities
registered a fresh FIR in Tulsidas Prajapati murder case and took over the
investigation of the said crime. During the course of the investigation CBI
recorded statements of several witnesses and after completing the
investigation filed a charge sheet on 4.9.2012. The Apex Court, by order
dated 8.4.2013 in writ petition no 149 of 2012 filed by Amitbhai
Anilchandra Shah v/s. CBI quashed the second FIR and directed that the
charge sheet filed in pursuance of the second FIR should be treated as
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supplementary charge sheet in the first FIR.
16. The imputations against the applicant are that he had entered into a
criminal conspiracy to cause death of Tulsiram Prajapati. It is a well settled
that the essence of criminal conspiracy is an agreement to do an illegal act
and such an agreement can be proved either by direct evidence or by
circumstantial evidence or by both. In the present case, while deciding the
application for discharge, the learned trial judge has enumerated the
following circumstances which are relied upon by the prosecution to prima
facie prove the involvement of the applicant in the crime.
i) The accused at the instruction of Mr. D.G. Vanjara, the
applicant herein had sent a message to Ashish Pandya, the
main shooter of Tulsiram Prajapati, to cancel his leave and join
duty.
ii) Mr. Ashish Pandya, in consultation with Vanzara and in
presence of the applicant, had lodged a false report being FIR
No.115 of 2006 at Ambaji Police Station stating that Tulsiram
Prajapti was killed in a genuine encounter.
iii) In order to avoid blame of shoddy investigation, the
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accused intentionally instructed Mr. Mayur Chawda, Dy.
Suptd. on probation, such action was against settled norm that
a trainee officer should not be assigned the duty to supervise
investigation in serious cases.
iv) During the pendency of the writ petition filed by
Narmadabai Prajapati, before the Apex Court for handing over
the investigation to CBI, the accused ordered destruction of
relevant leave record of Ashish Pandya, thereby causing
disappearance of material evidence.
17. The learned Trial Judge after perusal of the records held that there is
prima facie material to show that the applicant had contacted Ashish
Pandya at the instance of D.G. Vanzara. The statement of Pw266
Jayprakash Patel indicates that Pandya was on sick leave from 28.10.2006
to 6.11.2006 and that his leave records were not available as the same were
destroyed as per the order dated 2.1.2008 passed by the applicant/accused.
The learned trial Judge while negating the contention of the Applicant that
the records were destroyed in a routine manner as per the instructions of the
State Government, held that the applicant being a senior police officer was
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aware that there were serious allegations that the accused Vanzara had
asked Ashish Pandiya to resume duties while he was on leave and that upon
resuming duties Ashish Pandya had allegedly killed Tulsidas Prajapati on
29.12.2006 in a fake encounter. The learned trial judge further held that
the statement of PW230 Arvindbhai Patel also reveals that Ashish Pandya
had lodged the FIR regarding encounter of Tulsiram Prajapati in
consultation with Mr. D.G. Vanzara and the Applicant herein. It took
about two hours to record the said FIR, which was allegedly false. The
learned trial judge further held that the material on record also prima facie
reveals that on the night on 28.12.2006 i.e. prior to encounter of Tulsiram
Prajapati the Applicant personally patrolled the said area. The learned trial
Judge further held that the applicant instead of monitoring the investigation
of such a serious case, did nothing but entrusted the investigation to Mayur
Chawda, Dy.S.P. on probation against settled norms. The learned Judge
therefore held that the said circumstances prima facie raise a strong
suspicion that the applicant was a party to the criminal conspiracy to
eliminate Tulsiram Prajapati and to cause disappearance of material
evidence.
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18. It may be mentioned that the lnd. trial judge has rendered a prima
facie finding that the applicant had entered in to a criminal conspiracy to
kill Tulsiram Prajapati. The applicant has not challenged the said finding,
based on which the application for discharge was dismissed but has merely
challenged the dismissal of the application for dropping the proceedings
against him on the ground that the acts and omissions attributed to him
were in fact the acts committed by him in discharge of official duties and
hence he is protected by section 197 Cr.PC.
19. The contention that the applicant had merely acted in discharge of
duty cannot be accepted as the records prima facie reveal that Sohrabuddin,
his wife Kausarbi and Tulsiram Prajapati were brought to Valsad Gujarat
and on 26th November 2005 Sohrabuddin was killed in a fake encounter.
Kausarbi was also murdered and her body was disposed of. Pursuant to the
letter of Rubabuddin, the brother of Sohrabuddin, the Apex Court had
ordered to inquire into the matter. The case was inquired and later
investigated and interim reports were filed before the Apex court between
11.9.2006 till 22.1.2007. Tulsidas Prajapati was a sole witness to the
abduction of Sohrabuddin and Kausarbi and being a key witness in the said
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murder case the then Investigating Officer had sought permission to record
his statement. In this backdrop a conspiracy was hatched to eliminate
Prajapati, with a motive to destroy the evidence with regard to abduction of
Sohrabuddin and Kausarbi and thus shield the accused involved in
Sohrabuddin and Kausarbi murder. The applicant who is arrayed as an
accused in Tulsiram Prajapati murder case, was at the relevant time posted
as a Superintendent of Police at Banaskantha.
20.
In furtherance of this conspiracy, Prajapati was brought to
Ahmadabad in connection with Case no.1124 of 2004 and on the return
journey on the intervening night of 26/27.12.2006 from Ahmadabad to
Udaipur, he was shown to have escaped the custody. Dinesh M.N. .the SP
Udaipur, had telephonically informed the applicant about the alleged
escape. On 27.12.2006 at 23.30 hrs the Udaipur police had sent a fax letter
to the applicant (SP Banaskantha) stating that the call details of Prajapati
show that Prajapati was hiding somewhere at Banaskantha. The call details
do not reveal that the said phone was used after the evening of 26.12.2006,
hence there was no reason for Udaipur police to inform the applicant that
Prajapati was hiding at Banaskantha. Primafacie it appears that the letter
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was apparently sent to the applicant as SP Banaskantha only as an attempt
to provide opportunity to stage manage an encounter.
21. The imputations in the charge sheet further indicate that Ashish
Pandya was on leave from 27.12.2006 and the co-accused Vanjara had
conveyed a message to him through the applicant to resume duty. It is
alleged that Ashish Pandya had killed Prajapati on 28.12.2006 at Ambaji
Village, District Banaskantha, within the jurisidction of the applicant. The
records also reveal that Ashish Pandya had lodged a false report in
consultation with Vanjara, in presence of the applicant herein.
22. It is also pertinent to note that the investigation in Sohrabuddin as
well as Prajapati murder case was being monitored by the Apex Court.
Furthermore, Narmadabai had already filed a petition before the Apex
Court seeking direction to the CBI to register the FIR and to investigate the
fake encounter of her son. The applicant was therefore well aware that the
leave records of Ashish Pandya were relevant for investigating the crime,
despite which the applicant ordered to destroy the records under the cloak
of official duties. The aforesaid acts prima facie constitute offence of
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criminal conspiracy. Needless to state that the acts, which constitute offence
of criminal conspiracy or illegal acts committed under a cloak of official
duty are not protected by section 197 Cr.P.C.
23. It is to be noted that in Rajib Ranjan v. Vijay Kumar 2015 (1) SCC
513, the Apex Court after considering the decision in Buddhikota
Subbarao (1993) 3 SCC 339, Raghunath Anant Govilkar (2008) 11 SCC
289 and Shambhunath Mishra (1997) 5 SCC 326 , has held that :
"the ratio of the aforesaid cases which is clearly discernable is
that even while discharging his official duties, if a public
servant enters into a criminal conspiracy or indulges in
criminal misconduct, such misdemeanor on his part is not to be
treated as an act in discharge of his official duties and
therefore provisions of Section 197 of the Code will not be
attracted."
21. In the instant case the imputations leveled against the applicant,
as reflected in the charge sheet, constitute offence of criminal
conspiracy. The defence of the applicant that while conveying the
message to Ashish Pandya he had only obeyed directions of the
accused Vanjara being his superior or that he had destroyed the
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leave records of Ashish Pandya in routine course of duty cannot be
considered at this stage. Consequently, the proceedings against the
applicant cannot be dropped at this stage for want of sanction. As
held by the Apex Court, question of sanction can be raised at any
stage. Hence, dismissal of this application will not preclude the
applicant from establishing his defence and raising the issue at a later
stage. In the event the applicant succeeds in proving that there was a
reasonable nexus of the incident with discharge of official duty, the
trial court shall re-examine the question of sanction and take decision
in accordance with law.
22. Under the circumstances, and in view of the discussion supra,
the application is hereby dismissed.
(ANUJA PRABHUDESSAI, J.)
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