Bombay High Court
Ltd. Col. Prasad Purohit vs National Investigation Agency ... on 2 January, 2023
Bench: A.S. Gadkari, Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 112 OF 2018
WITH
INTERIM APPLICATION NO. 1252 OF 2021
Lt. Col. Prasad Purohit ]
Age about 44 years, Occupation : Service, ]
Resident of 76/21, Susmriti, Shantishila Society, ]
Law College Road, Erandawana, Pune- 411 004. ] ... Appellant
(Org. Accused No.9)
V/s.
1. National Investigation Agency ]
Ministry of Home Affairs ]
Shastri Building, New Delhi ]
2. The State of Maharashtra ] ... Respondents
Dr.Neela Gokhale a/w. Mr.Sagar Bhandare, Mr.Viral Babar, Ms.Manjiri
Parasnis & Mr.Malhar Kadam for Appellant.
Mr.Sandesh Patil a/w. Mr.Chintan Shah for Respondent No.1-NIA.
Mrs.S.D. Shinde, A.P.P. for Respondent No.2-State.
Mr.Shahid Nadeem a/w. Ms.Kritika Agrawal, Mr.Qurban Hussain, Ms.Aafrin
Khan i/b. Mr.Mateen Shaikh for Intervenor.
CORAM : A. S. GADKARI AND
PRAKASH D. NAIK, JJ.
RESERVED ON : 29th November 2022.
PRONOUNCED ON : 2nd January 2023.
JUDGMENT (Per : A.S. Gadkari, J.)
1. By the present Appeal under Section 21(1) of National
Investigation Agency Act, 2008, Appellant, Original Accused No.9, has
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impugned Order dated 27th December 2017 passed below Exh.4247 and
Exh.4689 in NIA Special Case No. 01 of 2016, by the learned Special Judge
(Under MCOC & NIA Act), Greater Mumbai, rejecting his application under
Section 227 of Criminal Procedure Code for discharge from the said crime.
2. Exhibit-4247 was filed by the Appellant under Section 227 of
Cr.P.C. read with Section 11 of MCOC Act for discharge under the provisions
of MCOC Act and UAPA Act.
Exhibit-4698 was filed by the Appellant under Section 227 of
Cr.P.C. read with Section 197 of Cr.P.C. for discharge under Section 302/307
of I.P.C. and Sections 3, 4, 5, 6 of the Explosives Act.
The Applications preferred by the Appellant have been partially
allowed by the Trial Court by its impugned Order. Appellant has been
discharged from the offences punishable under Sections 3(1)(i), 3(1)(ii),
3(2), 3(4), 3(5) of MCOC Act and from the offences punishable under
Sections 17, 20 & 23 of UAP Act as well as for the offence punishable under
Sections 3, 5 & 25 of Arms Act. The Trial Court has directed that, Charge be
framed against the Appellant and accused Nos.1, 4 to 6, 10 & 11 for the
offences as more specifically mentioned in para No.7 of the operative part of
the impugned Order.
3. Heard Dr.Neela Gokhale, learned counsel for Appellant,
Mr.Sandesh Patil, learned Special P. P. for Respondent No.1-NIA, Mrs.S.D.
Shinde, learned A.P.P. for Respondent No.2-State and Mr.Shahid Nadeem,
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learned Advocate for Intervenor. Perused Synopsis/List of Dates submitted by
the learned counsel for Appellant and the Written Submissions submitted by
the learned Advocate for Intervenor. Perused entire record produced before
us.
4. At the outset, Dr.Neela Gokhale, learned counsel for Appellant
submitted that, the Appellant is challenging the impugned Order only on the
ground of requirement of 'Sanction' as contemplated under Section 197(2) of
Cr.P.C. to prosecute him, as on the date of commission of alleged offence, he
was a public servant and was performing his lawful duty in that behalf and
to consider the case of the Appellant only on the point of 'Sanction' as
required under Section 197 of Cr.P.C.. She therefore submitted that, the issue
of 'Sanction' as contemplated under Section 197 of Cr.P.C. be decided in the
present appeal.
5. It is to be noted here that, by an Order dated 21 st August 2017,
the Appellant was granted bail by the Hon'ble Supreme Court. By
subsequent Order dated 20th April 2018 passed in Petition for Special Leave
to Appeal (Crl.) Nos.611-613 of 2018, the Hon'ble Supreme Court ordered
that, the observations made by it in the Order deciding the bail application
shall not be totally brushed aside, but shall be considered during framing of
charge and the Trial Court and the High Court shall decide the same on its
own merits without being influenced by the observations in respect of
sanctions in para No.19 of the Order dated 21st August 2017.
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6. We have accordingly heard learned counsel for the Appellant at
length on the point whether the 'Sanction' under Section 197(2) of Cr.P.C. is
necessary or not to prosecute the Appellant.
7. As per the Second Supplementary Report submitted by the
Respondent No.1-NIA before the Trial Court, it is the case of the prosecution
that :-
(i) On 29th September 2008, at about 21.35 hours, a bomb explosion
occurred opposite Shakeel Goods Transport Company, between Anjuman
Chowk and Bhiku Chowk at Malegaon. The blast took place by an improvised
explosive device fitted in a LML Freedom motorcycle bearing registration
number MH-15/P-4572. In the said bomb explosion, six persons were killed
and about 101 persons received serious to grievous injuries. There was also
loss of public property in the vicinity. Since, it was the month of 'Holy
Ramzan' and on 30th September 2008 holy festival of 'Navratrotsav', was to
commence, it was apparent that the conspirators caused bomb blast with an
intent to terrorize the people, to cause loss of life and property, disruption of
supplies and services essential to the community, to create communal rift and
to endanger internal security of the State.
(ii) A Crime bearing CR No.130 of 2008 dated 30th September 2008 was
registered at Azad Nagar, Police Station, Malegaon under Sections 302, 307,
326, 324, 427, 153-A & 120-B of Indian Penal Code (for short, "IPC") read
with Sections 3, 4, 5 & 6 of Explosive Substances Act, 1908 read with 3, 5 &
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25 of the Arms Act read with Sections 15, 16, 17, 18, 20 & 23 of Unlawful
Activities (Prevention) Act, 1967 (Amended) 2004 (for short, "UAPA Act").
(iii) The Maharashtra Police invoked provisions of Unlawful Activities
(Prevention) Act, 1967 (Amended) 2004 (for short, "UAPA Act") to the said
case on 18th October 2008 and the ATS Mumbai applied the provisions of
MCOC Act on 29th November 2008.
(iv) The investigation of the said case was subsequently taken over by the
National Investigating Agency (for short, "NIA"), New Delhi in pursuance of
the Order of Government of India, Ministry of Home Affairs (Internal
Security-I Division), New Delhi vide Order No.1-11034/18/2011-IS-IV dated
1st April 2011.
(v) After completion of investigation, A.T.S., Mumbai submitted First
Chargesheet on 20th January 2009 against 11 arrested and 03 wanted
accused persons. The same was registered as MCOC Special Case No. 01 of
2009 and the cognizance of the said offence was taken by the Trial Court.
During the course of further investigation, one of the wanted accused,
namely Praveen Venkatesh Takkalki @ Pravin Mutalik @ Pradeep V. Naik was
arrested on 1st February 2011 and a Supplementary Chargesheet against him
was filed by the A.T.S., Mumbai on 21st April 2011.
(vi) The Government of India, Ministry of Home Affairs, New Delhi vide its
Order dated 1st April 2011 Suo-Motu directed the N.I.A. to take up the
further investigation of the present crime.
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NIA started investigation on the basis of the facts stated in the FIR and
the evidence collected by the A.T.S., Mumbai. It was found by N.I.A. that,
there were contradictions with regard to the evidence filed with the
Chargesheet by A.T.S., Mumbai, which questioned the reliability of witnesses.
N.I.A. obtained permission to interrogate the chargesheeted accused persons
lodged in judicial custody and carried out their interrogation during the
course of its investigation. After completion of investigation N.I.A. submitted
its Chargesheet before the Trial Court.
8. In the said Chargesheet, following allegations are made against
the Appellant.
"1. Accused Prasad Purohit had floated Abhinav Bharat
organization in the year 2006 in spite of being a serving
Commissioned Officer of the Armed Forces of India
which is against the services rules.
2. This accused along with other accused had collected
huge funds for the Abhinav Bharat organization and
directed to disburse it to procure weapons and
explosives for their unlawful activities. He is one of the
key members of the criminal conspiracy.
3. Accused Prasad Purohit had organized and conducted
various meetings with other accused persons in
furtherance of their common object of the criminal
conspiracy to commit continuous unlawful activities.
4. On 25, 26/01/2008, in a secret meeting at Faridabad,
this accused proposed a separate constitution for Hindu
Rashtra with separate flag (Bhagwa Flag). He read over
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the constitution of Abhinav Bharat which he had
prepared, discussed about the formation of Central
Hindu Government (Aryawart) against the Indian
Government and put forth the idea of forming this
Government in exile in Israel and Thailand. This
accused also discussed about taking revenge of the
atrocities committed by the Muslims on Hindus.
5 ... (Not relied upon)
6. ... (Not relied upon)
7. This accused had participated in the meeting of Abhinav
Bharat which was held in 15 & 16/09/2008 at Bhosla
Military School, Nashik, in which accused Ramesh
Upadhyay was elected as working president of the
Abhinav Bharat. In this meeting, it was decided that the
power to take back the weapons acquired for Abhinav
Bharat from accused No.10 Sudhakar Dhar Dwivedi
would vest with accused Ramesh Upadhyay.
8. ... (Not relied upon)
9. Accused Prasad Purohit collected huge amount of funds
for himself and for his Abhinav Bharat organisation out
of which Rs. 2.5 lakhs were paid to one builder in
Nashik through accused Ajay Rahirkar for booking a
house for himself.
10. ... (Not relied upon)
11. ... (Not relied upon)
12. During investigation, the FSL report was received with
regard to the data retrieved from the laptop of accused
Sudhakar Dhar Dwivedi (Vol-I-A, Page 141). The voice
samples of accused Prasad Purohit, Sudhakar Dwivedi
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and Ramesh Upadhyay are also available which are
positive. (Vol-I-393 & Vol-VI-21) as per FSL report.
13. The authorized intercepted conversation between this
accused and accused Ramesh Upadhyay and others
reveals that they were also in the process of creating
their defence in case. This accused even suggested
accused Ramesh Upadhyay to procure another SIM card
for himself. He even alerted Upadhyay by saying that,
they should be very meticulous thereafter. The post
conduct of the accused persons shows the guilt in their
minds and their active participation in the crime.
14. On 24/10/2008, i.e. after the arrest of accused Pragya
Singh Thakur, accused Prasad Purohit had sent a SMS to
accused Sameer Kulkarni stating that A.T.S. has entered
in his house at Pune and directed him to delete his
numbers from telephone and to leave Bhopal
immediately. This act of the accused Prasad Purohit
confirms his complicity in the present crime.
15. During the investigation by NIA, Shri. _______ (PW-55)
was re-examined. During examination he stated that, he
did not retract in front of the Magistrate while his
statement was being recorded on 18.11.2008 U/s. 164
of Cr.P.C. due to threat and pressure of ATS. However he
had sent one complaint to Maharashtra State Human
Right Commission Mumbai on 05.10.2009 [before
transfer of the investigation of the case to NIA] stating
that he was forced to give the confessional statement as
dictated by the A.T.S. Mumbai. He alleged that the
following lies were dictated to him to depose before the
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Magistrate by ATS which he also incorporated in the
complaint sent to Maharashtra State Human Rights
Commission, Mumbai :-
[a] That Lt. Col. Prasad Purohit gave him 3 weapons and
ammunition to be kept in his house for a month
sometime in 2006. The description of the weapons was
also dictated to him.
[b] That he saw RDX in the house of Lt. Col. Prasad Purohit
in a green sack at Devlali.
[c] That Lt. Col. Purohit confessed to him about having
supplied RDX for Samjhauta Express Blast.
[d] That Lt. Col. Purohit told him in the early 2008 that
something was planned to be done soon. He further told
him that an action was planned in Nashik district in
Oct/Nov. 2008.
[e] That he was asked to say that Lt. Col. Purohit had
confessed to him about planning and executing the
Malegaon blast along with his accomplices.
Notwithstanding the shortcoming in the evidence, at this stage there's
sufficient evidence to prosecute A-9 Lt. Col. Prasad Shrikant Purohit under
various statutes and sections of law as mentioned in the following chart and
the value of the evidence placed on record shall be assessed at the trial
stage."
8.1. The N.I.A. has also relied upon other evidence and the
statements from which it has come to the conclusion that, the Appellant was
having close association with co-accused Sudhakar Udaybhan Dhar Dwiwedi
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(A-10), Sudhakar Chaturvedi (A-11), Pravin Takkalki (A-12) etc. The
Respondent-N.I.A. therefore has submitted before the Trial Court that, there
is sufficient material to take cognizance of the offence and prosecute the
Appellant for the offences alleged against him.
9. Dr.Gokhale, submitted that, the Appellant is an employee of
Armed Forces and in particular, is affiliated to Military Intelligence
Department and therefore 'Sanction' for prosecution of a public servant as
contemplated under Section 197 and/or 197(2) of Cr.P.C. by the concerned
Authority is necessary. She submitted that, the incident in-question occurred
on 29th September 2008. That the Appellant being an Army Officer, in the
month of April 2009 a Court of Inquiry (for short, "C.o.I.") was instituted and
the Appellant was subjected to C.o.I. to investigate allegations against him.
The C.o.I. closed its proceedings in the year 2012. That almost all the
personnel who were examined in the course of the C.o.I. deposed in favour
of the Appellant, which the C.o.I. has also taken into consideration by the
N.I.A. in the course of its investigation. The witnesses before the C.o.I.
affirmed and re-affirmed that the Appellant had attended various meetings,
of which he has been accused of being a co-conspirator and hence implicated
in the bomb blast case, was in fact in discharge of his duty as an Intelligence
Officer of the Indian Army and had kept his superiors informed in respect of
his whereabouts and discussions which took place and the plans made in the
said meetings. That the C.o.I. closed its proceedings in the year 2012
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exonerating Appellant from the allegations against him. She submitted that,
the Respondent-NIA has specifically dropped statements of various witnesses
as inadmissible and has only charged the Appellant as per its Chargesheet
(reproduced in para No.8 above). That, the trial Court has dropped charges
under the M.C.O.C. Act against the Appellant and other accused persons. She
submitted that, the Appellant is still in service and his salary has not been
stopped by the Government of India. Though the Appellant has filed on
record two compilations of citations, the learned counsel for Appellant
pressed into service the following three decisions in support of her various
contentions.
(i) Prashant Bharati V/s. State (NCT of Delhi), (2013) 9 SCC 293
(ii) Devinder Singh & Ors. V/s. State of Punjab, (2016) 12 SCC 87
(iii) D. Devraja V/s. Owais Sabeer Hussain, 2020 SCC OnLine SC 517
By relying upon the aforestated citations, she submitted that,
there is reasonable nexus between the act done by the Appellant and his
official duty. She submitted that, the Appellant acted in good faith and
therefore 'Sanction' under Section 197 of Cr.P.C. is necessary. She relied upon
confidential documents dated 16th January 2008 (page 315) issued by
Mr.Rajasegharan MC, Lt.Col., Officer Commanding ; dated 2 nd April 2018
(page 547) issued by Mr.S.S. Chahal, Brig., DDGMI (B) for VCOAS and dated
8th February 2019 (page 601) issued by Mr.M.S. Gill, Colonel, Military
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Intelligence-9 for Vice Chief of Army Staff. She submitted that, perusal of
said letters would clearly indicate that, the Appellant was deputed to collect
intelligence about the Hindu Organization, namely, Abhinav Bharat. That the
Appellant in his capacity as a public servant performed his official duty in
collecting intelligence regarding the said Organization and submitted his
inputs to the Higher Authorities. That, the trial Court has erred in not
considering the aforestated aspects of the case. She therefore prayed that,
the impugned Order passed by the Trial Court may be quashed and set-aside
and the Appellant may be discharged from the case for want of Sanction
under Section 197 of Cr.P.C..
10. Mr.Patil, learned Special P. P. for Respondent-N.I.A. submitted
that, the trial Court has already framed charge and thereafter in pursuance of
the Orders passed by the Hon'ble Supreme Court and this Court, the trial of
the case is being conducted on day-to-day basis. That as of today the
prosecution has examined 289 witnesses. He submitted that, once charge is
framed and if the accused pleads not guilty, the trial is required to proceed
with and thereafter the accused can either be acquitted or convicted,
however there cannot be discharge from the case. He placed reliance in the
case of Ratilal B. Mithani V/s. State of Maharashtra & Ors., reported in
(1979) 2 SCC 179. Mr.Patil tendered across the bar a compilation of
Exh.4247 ; Exh.4698 filed by the Appellant and replies filed by the N.I.A. to
it, as the said documents were not annexed by the Appellant to the Appeal
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compilation.
Mr.Patil submitted that, the letters dated 16th January 2008
(page 315), 2nd April 2018 (page 547) and 8th February 2019 (page 601)
produced on record by the Appellant in support of his contentions, is his
defence in the trial wherein he is an accused and therefore the Appellant is
precluded from invoking Section 197 of Cr.P.C.. He submitted that, it is the
defence of the Appellant that, his act falls within the purview of Section 197
of Cr.P.C.. The act of Appellant does not fall within the purview of Section
197 of Cr.P.C. as his act is not in colour of his office but totally unconnected
with his official duty. That, the Respondent has investigated a crime of a
bomb blast in civilian area and therefore the Court of Inquiry conducted by
the Military Authorities has no bearing on it. In support of his contention, he
relied on a decision of the Supreme Court in the case of Major Suresh C.
Mehra V/s. Defence Secretary, Union of India & Ors., reported in (1991) 2
SCC 198. He submitted that, as a matter of fact in response to the letter
dated 24th March 2011 addressed by the then Chief of Anti Terrorism Squad,
Maharashtra, the Deputy Director General of Military Intelligence
(B),General Staff Branch, Integrated HQ of MOD (Army), namely, Brig.
Gautam Deb has informed the concerned Authority that, there is no input
available with his office regarding any official communication made by the
Appellant to his superiors pertaining to any terrorist related inputs or
information about meetings of Abhinav Bharat. Said letter is annexed at page
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603 to the compilation of Appeal. That, Brig. Gautam Deb has been
examined as PW-283 in the present case i.e. NIA Special Case No. 01 of 2016
before the Special Court and in his deposition the said witness has proved
the said document dated 29th March 2011 including its contents thereof. The
said document is on the record of the trial Court at Exh.7778. He therefore
submitted that, there are no merits in the contention of the Appellant that
'Sanction' under Section 197 of Cr.P.C. is necessary to prosecute him. He
therefore prayed that, the present Appeal may be dismissed.
11. Mr.Nadeem, learned Advocate appearing for Intervenor adopted
the arguments of the learned Special P.P.. He also relied on the decision of the
Hon'ble Supreme Court in the case of Major Suresh C. Mehra (supra) to
contend that, the Court of Inquiry held under the Army Rules is in nature of
a preliminary investigation and cannot be equated with a trial. He submitted
that, there are no merits in the Appeal and also prayed that, the present
Appeal may be dismissed.
12. The Appellant has contended that, the offence alleged against
him was committed while performing his official duty or in the colour of his
official duty. To substantiate his contention, he has pressed into service
following three documents.
(i) Confidential letter dated 16th January 2008 addressed by Mr.
Rajasegharan MC Lt Col, Officer Commanding to Comd LU.
(page 315).
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(ii) Confidential letter dated 2nd April 2018 addressed by S. S. Chahal,
Brig. DDGMI (B) for VCOAS to the Appellant (page 547).
(iii) Confidential letter dated 8th February 2019 addressed by MS. Gill,
Colonel, Colonel Military Intelligence-9 for Vice Chief of Army Staff
to Mr. G. P. Singh, IPS, Inspector General (Int & Ops) National
Investigating Agency, New Delhi (page 601).
(a) Letter dated 16th January 2008 is addressed by Rajasegharan MC
Lt Col to the Comd LU. It speaks about the information learnt from a 'source'
that, the organization i.e. Abhinav Bharat was planning to launch its pol
agenda on 26th January 08 at Delhi or on 27 th January 08 at Jammu. That,
the political wing of the organization was likely to be launched in the month
of April/May 08, after clearance from the Election Commission of India. It
also refers to the pol agenda of the said organization and the names of
certain persons who were likely to attend the said meeting.
It is the contention of the Appellant that, he was the said 'source'
referred to in the said letter. A bare perusal of said letter would indicate
that, it is difficult to accept the said contention.
(b) The next letter relied upon by the Appellant is dated 2 nd April
2018 addressed by S. S. Chahal, Brig. to the Appellant. The said confidential
letter is issued by the concerned authority in response to the Application
dated 24th December 2017 submitted by the Appellant himself to the Chief of
Army Staff. The said letter also refers to the letter dated 29 th March 2011
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issued by the then DDGMI (B) to Shri. Rakesh Maria, ADG, ATS. In the said
letter it is mentioned that, the Appellant was operating as a 'source' network
through which he had obtained intelligence inputs. That, the Appellant's
superiors at appropriate level were informed of the inputs provided by the
'source'.
A minute perusal of this letter would clearly indicate that, the
Appellant had submitted a letter dated 24 th December 2017 to the Chief of
Army Staff and in response thereto the said letter dated 2 nd April 2018 has
been issued by the concerned Authority. It is to be noted here that, the
Application below Exh.4698, under Section 227 read with 197 of Cr.P.C. was
filed by the Appellant on 6th November 2017 and thereafter the Appellant
submitted the said letter dated 24 th December 2017 to the Chief of Army
Staff. The said letter nowhere mentions that, Appellant was entrusted with
the official duty to launch/form the organization namely Abhinav Bharat and
to procure explosives for causing terror in the civilian area. According to us,
with a view to create defence in his favour the Appellant has procured the
said letter dated 2nd April 2018.
(c) The third letter dated 8th February 2019 issued by Mr. MS. Gill,
Col. to Mr. G. P. Singh, IPS, Inspector General, NIA is in response to the
letter/questionery dated 14th December 2018 sent by the NIA to the
concerned Authority seeking certain information. The said letter dated 8 th
February 2019 categorically mentions that, there is no record to substantiate
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the claim of the Appellant that, he sought permission from the competent
authority to form Abhinav Bharat trust. That, there was no record to
substantiate assertions made with respect to permission from competent
authority for collection and disbursements of funds for Abhinav Bharat trust.
That, there is no record to substantiate the assertions with respect to
meetings of Abhinav Bharat trust attended by Appellant and submission of
after meeting records other than the details mentioned in para No.3 of the
letter dated 2nd April 2018 (Sr.No.(ii) above).
13. The Respondent NIA has relied upon a letter dated 29 th March
2011 addressed by Brig. Gautam Deb, DDGMI (B) to the then Additional
Director General of Police, ATS, Mumbai to contend that, the Appellant did
not act in his official capacity while committing the present crime. This letter
was issued by the concerned Authority to the ATS i.e. the earstwhile
investigating agency. The said letter was in response to the query raised by
the ATS regarding averment made by Appellant in his Bail Application
No.333 of 2011 before this Court. It is categorically stated therein that,
there was no input available with the said office regarding any official
communication made by Appellant to his superior officers pertaining to any
terrorist related inputs or information about the meetings of Abhinav Bharat.
14. The said two documents dated 16th January 2008 (page No.315)
and 8th February 2019 (page No.601), if placed in juxtaposition with the
document dated 29th March 2011 (page No.603), it clearly contradicts the
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document dated 29th March 2011. The document dated 29 th March 2011
inspires more confidence in the mind of Court than the other two documents
relied upon by the Appellant. It appears to us that, the said two documents
dated 16th January 2008 and 8th February 2019 are obtained by the Appellant
and pressed into service, only to create defence in his favour and nothing
more than it.
15. The document dated 29th March 2011 (page 603) is issued by
Brig. Gautam Deb, DDGMI (B). It does not support case of Appellant but in
fact falsifies his claim that, he was performing the said act in his official
capacity and while performing his duty. The said letter was issued by the
concerned Authority to the then Additional Director General of Police A.T.S.
who was investigating the present crime. As noted earlier, the said letter was
in response to the query raised by A.T.S. regarding averment made by
Appellant in his Criminal Bail Application No. 333 of 2011 before this Court.
The signatory of the said letter i.e. Brig. Gautam Deb has testified before the
Trial Court in the present case i.e. NIA Special Case No. 01 of 2016 as PW-
283 and in his deposition he has also proved the said document dated 29 th
March 2011 including its contents thereof. The said document is on the
record of the Trial Court at Exh-7778.
16. The Court of Inquiry constituted by the Army Authorities did not
conduct trial of the present crime wherein it has been alleged against the
Appellant that, he committed an offence under Section 120-B r/w Section
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302 and other related sections of I.P.C. and under the provisions of UAP Act.
It is the settled position of law and as has been held by the Hon'ble Supreme
Court in the case of Major Suresh C. Mehra (supra) that, the inquiry held
under the Army Rules is in the nature of a preliminary investigation and can
not be equated as a trial. That, the inquiry being by commanding officer,
was not a trial by a Criminal Court or Court Martial and an inquiry was dealt
with summarily under the said Rules. The contention of the Appellant that,
he has been exonerated by the Court of Inquiry after investigating the
allegations against him and therefore he be discharged from the present case
for want of sanction under Section 197 of Cr.P.C. therefore can not be
accepted and is accordingly rejected.
17. In the case of Prashant Bharati V/s. State (NCT of Delhi) (supra)
the issue for consideration before the Hon'ble Supreme Court was regarding
framing of charge under Section 376, 328 and 354 of the IPC against the
Appellant therein and quashment of F.I.R. under Section 482 of Cr.P.C. The
said decision relied upon by the Appellant has no direct bearing on the facts
and issue involved in the present case. The next decision relied upon by the
Appellant, in the case of Devinder Singh & Ors. V/s. State of Punjab,
Through CBI (supra) pertains to a fake encounter by a police officer and it is
held therein that, if the version of prosecution about fake encounter is
correct, there would be no requirement of sanction under Section 197 of
Cr.P.C. The last decision relied upon by the Appellant is in the case of D.
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Devraja V/s. Owais S. Hussain (supra). In the said case the issue which fell
for consideration before the Hon'ble Supreme Court was regarding taking
cognizance of a private complaint filed by the Respondent therein against the
Appellant for ill-treating the respondent when he was in police custody. In
the said decision, the Hon'ble Supreme Court in para No.67 has held that,
the decision in the case of Devinder Singh & Ors. V/s. State of Punjab
(supra) is clearly distinguishable as that was a case of killing by the police
officer in fake encounter. Thus, the said decisions relied upon by the
Appellant are rendered in the context of facts involved in the said cases and
are not applicable to the facts involved in the present case.
18. At this stage a useful reference can be made to a decision of the
Hon'ble Supreme Court in the case of P. K. Pradhan V/s. State of Sikkim
represented by the Central Bureau of Investigation, reported in (2001) 6 SCC
704. The Hon'ble Supreme Court in para Nos.5 & 15 of the said decision has
held as under :-
"5. 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
Osk Appeal-112-2018.odt
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. No question
of sanction can arise under Section 197, unless the act
complained of is an offence; the only point for determination is
whether it was committed in 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.
15. Thus, from a conspectus of the aforesaid decisions, it will be
clear that for claiming protection under Section 197 of the Code,
it has to be shown by the accused that there is reasonable
connection between the act complained of and the discharge of
official duty. An official act can be performed in the discharge of
official duty as well as in dereliction of it. For invoking
protection under Section 197 of the Code, the acts of the accused
complained of must be such that the same cannot be separated
from the discharge of official duty, but if there was no reasonable
connection between them and the performance of those duties,
Osk Appeal-112-2018.odt
the official status furnishes only the occasion or opportunity for
the acts, then no sanction would be required. If the case as put
forward by the prosecution fails or the defence establishes that
the act purported to be done is in discharge of duty, the
proceedings will have to be dropped. It is well settled that
question of sanction under Section 197 of the Code can be raised
any time after the cognizance; may be immediately after
cognizance or framing of charge or even at the time of
conclusion of trial and after conviction as well. But there may be
certain cases where it may not be possible to decide the question
effectively without giving opportunity to the defence to establish
that what he did was in discharge of official duty. In order to
come to the conclusion whether claim of the accused, that the
act that he did was in course of the performance of his duty was
a reasonable one and neither pretended nor fanciful, can be
examined during the course of trial by giving opportunity to the
defence to establish it. In such an eventuality, the question of
sanction should be left open to be decided in the main judgment
which may be delivered upon conclusion of the trial."
19. The Appellant has been charged with the allegations more
specifically mentioned para No.8 hereinabove. A minute perusal of record
clearly indicates that, the Appellant was never granted permission by the
Government to float Abhinav Bharat organization inspite of being a serving
Commissioned Officer of the Armed Forces of India. Appellant was also not
permitted to collect funds for the said organization and to disburse it to
procure weapons and explosives for their unlawful activities. Appellant is the
key conspirator in the present crime. Appellant has actively participated with
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other co-accused and has organized and conducted various meetings with
them in furtherance of their common object of the criminal conspiracy to
commit unlawful activities.
If the contention of the Appellant that, he was directed to
perform official duty to gather information regarding 'Abhinav Bharat' is to
be accepted then the question remains to be answered that, why he did not
avert the bomb blast in the civilian locality of Malegaon which caused loss of
life of six innocent persons and severe to grievous injuries to about 100
persons. Even otherwise indulging into an activity of a bomb explosion
causing death of six persons is not an act done by the Appellant in his official
duty.
20. After minutely perusing entire record we are of the considered
opinion that, the offence/s alleged against the Appellant under Section 120-B
r/w 302 and other related sections of the Indian Penal Code and under the
provisions of UAP Act, of commission of murder of six persons and causing
serious to grievous injuries to about 100 persons is nothing to do with his
official duty. It has nothing to do or related in any manner with the
discharge of the official duty of the Appellant. The said act is not in colour of
his office, but totally unconnected with his official duty. According to us,
there is no reasonable connection between the offence alleged against the
Appellant and his official duty. The act alleged against the Appellant has not
been committed in discharge of his official duty. Therefore no question at all
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of according sanction under Section 197 of Cr.P.C. to prosecute Appellant
arises. The trial Court therefore has not committed any error while taking
cognizance of the offence alleged against the Appellant and rejecting his
Application for discharge on that ground.
21. A cumulative effect of the aforestated deliberation is, there are
no merits in the Appeal and the Appeal is accordingly dismissed.
22. In view of disposal of the Appeal, Interim Application No. 1252
of 2021 does not survive and is also disposed off.
[ PRAKASH D. NAIK, J. ] [ A.S. GADKARI, J. ]
Digitally signed
by OMKAR
OMKAR SHIVAHAR
SHIVAHAR KUMBHAKARN
KUMBHAKARN Date:
2023.01.02
13:13:41 +0530
