R.N. Sharma vs Union Of India
1999 Latest Caselaw 1165 Del

ORDER

R.S. Sodhi, J.

1. The petitioner by this petition, under Article 226 of the Constitution of India, has challenged the order No. 14036/15/94/- UTS dated 8th April, 1997, passed by the respondent refusing sanction for prosecution of Mr. Deepak Misra, DCP, for offence under Section 218 of the Indian Penal Code. The petitioner has challenged the legality and validity of the order on the ground that the same was passed without considering material facts on record, is non-speaking, arbitrary, unreasonable, mechanical, passed in total non-application of mind and is a fraud of power/colorable exercise of power/abuse of power and has been made with the obvious intention of shielding a senior IPS officer.

2. The facts leading to the case are that Aditya Naraian succumbed to his injuries on 14th October, 1990, on receiving a fire arm injury at the hands of SI. D.P. Singh of Delhi Police in the incident of 25th September, 1990, when residents of Sarojini Nagar were demonstrating against the implementa- tion of the Mandal Commission report.

3. On 1st October, 1990, the petitioner filed a complaint with SHO, Vinay Nagar Police Station to investigate the incident of shooting in Sarojini Nagar area which had caused death of his son. It is the case of the petitioner that the newspaper reported the filing of a public interest petition being Civil Writ Petition No. 3393 of 1990 (P.V. Kapur and another Vs. Union of India) in the Delhi High Court for adjudication upon action of police firing in INA Market and Sarojini Nagar. The petitioner, therefore, with leave of the court, filed an affidavit narrating the incident which took place on 25th September, 1990, at Sarojini Nagar and sought various reliefs from the court including that criminal proceedings be initiated against those police officers found responsible for the death of his son.

4. In the meantime, however,the petitioner sought an appointment with the commissioner, Delhi police, to look into the matter, upon which, the com- missioner directed Mr. Deepak Misra, the then Additional DCP (south) to conduct a formal investigation into the incident of shooting that took place at Sarojini Nagar on 25th September, 1990, and to submit a report.

5. Deepak Misra examined various witnesses during the course of his inquiry and identified the police officer who fired the shot but was of the opinion that :

"However, it is a sheer tragedy and most unfortunate that this bullet which was fired presumably in the air and in which no mala fide happened to have taken place, the bullet took an awry trajectory and had hit Aditya Narayan who was very much present at the inter-face of police and violent mob..."

He further summed up the inquiry report stating that :

"..Hence, to sum up, the immediate cause of death of Aditya Narain was due to the infection which was contracted by him during post-operation period. This infection contracted by him was in itself an effect caused by the bullet shot by SI D.P. Singh from his service revolver and SI. D.P. Singh had to resort to open fire from his service revolver to disperse an unlawful assembly... SI. D.P. Singh had, to the best of his judgment, opened fire in the air but, as ill-luck would have been, the bullet in its dying moments happened to graze through skull of Aditya Narain who was a part of unlawful assembly near the over- turned water tanker at Navyug School crossing."

6. This inquiry report became subject matter of Civil Writ Petition No. 3393 of 1990 wherein the High Court by judgment and order dated 6th Septem- ber, 1990, held that "

"...In our opinion there is absolutely no justification for resorting to firing as being the only means or method of control- ling the mob. We are also not satisfied that Aditya Narain was a member of an unlawful assembly. There is merely a surmise on the part of the Addl. DCP, who has, in our opinion, tried to cover up the actions of the policemen. No comment has been made by the Addl. DCP to the fact that an FIR was lodged by D.P. Singh at 1.30 p.m., after Aditya Narain had been shot and taken to the Police. There is no mention in this FIR that SI D.P. Singh had fired the shot. There is also no mention the Aditya Narain had suffered an injury. By stating the FIR that Constable Dharam Vir had fired under instruction of D.P. Singh, it is clear that D.P. Singh did not want to own the responsibility of firing the shot which had injured Aditya Narain. The finding of the Addl. DCP about the bullet taking awry trajectory and in its dying moments crossing through the Skull, is difficult to accept as a plausible explanation. The bullet was fired from a revolver and it got embedded in the skull of Aditya Narain. It was, therefore, fired from not too distant a position. According to Aditya Narain's father , the bullet was fired from a distance of about 50 feet and looking at the nature of the injury this is more probable. It could not be that a bullet was fired in the air and it took an awry trajectory and in its dying moments got embedded in Aditya Narain's skull. The bullet, if it was falling down on the ground, as the Addl. DCP expects one to believe, could not have had sufficient force or momentum to pierce the skull of Aditya Narain and thereafter accusing his death.. we are also not satisfied that Aditya Narain was a member of an unlawful assembly. There is merely a surmise on the part of the Addl. DCP, who has, in our opinion, tried to cover up the actions of the policemen."

7. It may be pointed out here that another inquiry was held by the metropolitan Magistrate, Delhi, on a protest petition lodged by the petitioner and the conclusion arrived at by the Magistrate vide order dated 5th Sep- tember, 1994, reads as follows :

"I have perused the report submitted by Deepak Misra and it is clear that although during his enquiry, he found all the evidences which connect the accused SI D.P. Singh with the commis- sion of the offence, he had with the intention to save him from punishment gave a conclusion which was contrary to the report and the fact finding down by him and which clearly is biased. Not only is the fact that Deepak Misra tried to save his fellow official SI D.P. Singh by giving report with the intention to prevent him form legal action, his (Deepak Misra) fellow man also tried to save him from legal action against him. In the complaint furnished by the complaint Shri R.N. Sharma, he had clearly mentioned about an offence against Deepak Misra, Police, in the formal FIR recorded, has not mentioned in the column No. 3 the offence committed by him, nor his name is mentioned in Column No. 5, which shows the name and address of the criminal. Investigat- ing agency has also not applied for sanction to prosecute Deepak Misra, who was a public servant and who purported to have commit- ted the offence in the discharge of his official duty. The police had only sought the sanction for prosecution of SI D.P. Singh. It is also clear that the then DCP of South West District, who granted instruction for the registration of the case u/S 304-A of IPC and for sending the file to the Crime Branch as is clear from the noting of SHO Rajeshwar Kumar of Police Station Vinay Nagar dated 27.3.93 on complaint of R.N. Sharma it is therefore, clear that at every step the police has made efforts to save Deepak Misra from prosecution.

Investigating agency has also not applied for sanction to prose- cute Deepak Misra, who was a public servant and who purported to have committed the offence in the discharge of his official duty...It is also clear that the then DCP of South West Dist. who granted instructions for recording of the FIR had only issued instructions for the registration of the case u/S 304-A of IPC and for sending the file to the Crime Branch as is clear from the noting of Sho Rajeshwar Kumar of police station Vinay Nagar dated 27.3.93 on complaint of R.N. Sharma, it is therefore, clear that at every step the police has made efforts to save Deepak Misra from prosecution."

The learned Metropolitan Magistrate further held that :

"..A prima facie case exists against accused Deepak Misra and this Court is also empowered to take cognizance of the offence under Section 190(b) of IPC but in view of Section 197 of Cr. P.C., this cannot take cognizance of any offence against a public servant for any offence purported to have been done by him in discharge of his official duty, without the previous sanction of the State-Government/Central Government."

The learned Metropolitan Magistrate therefore concluded that :

"A prima facie case for the offence U/s 218 of IPC exists against the accused Deepak Misra. The complainant is directed to procure sanction for prosecution of Deepak Misra and then only Court can take cognizance of the offence u/s 218 of IPC against the accused Deepak Misra."

8. It is the contention of the petitioner that after the High Court had prima facie opined that the Additional DCP has tried to cover up the ac- tions of the policemen, the petitioner was hopeful that appropriate depart- mental action would voluntarily be initiated against the two police officials. However, no action was initiated against the said two police officials named in the inquiry report nor was Mr. Deepak Misra prosecuted under Section 218 of the Indian Penal Code. The petitioner moved an application being C.M. No. 98 of 1992 in Civil Writ petition No. 3393 of 1990 were the petitioner sought a direction to the Union of India/Delhi Administration to prosecute SI D.P. Singh under Section 302 of the Indian Penal Code and the Investigating/Inquiry Officer, DCP, Deepak Misra, under Section 218 of the Indian Penal Code.

9. During the hearing of C.M. No. 98 of 1992, the Court was informed that departmental inquiry had already been initiated against SI, D.P. Singh, and that no action was proposed to be taken against DCP, Deepak Misra. The High Court, therefore, vide order dated 15th May, 1992, dismissed the said application in the following terms :

"C. M. 98/92 in C.W. 3393/90 :

We are informed by the counsel for the parties that a sum of Rs. 2,50,000/- has been paid to Shri R.N. Sharma, father of the deceased Aditya Narain and a sum of Rs. 50,000/- has been paid to the next of kin of Devinder Kumar Sharma. The other relief claimed by the applicant is that the Court should order the prosecution of D.P. Singh and Deepak Mishra. Mr. Mahajan states that a departmental inquiry has been initiated against D.P. Singh. He states that at the present moment no action is proposed to be taken against Deepak Mishra.

Mr. Kapur states that his client will take recourse to the provisions of the Crl. Procedure Code and will, if he is so advised, file an FIR against D.P. Singh. and/or Deepak Mishra. Mr. Mahajan states that as the same is registered and the matter proceeds in accordance with law. In this view of the matter no further relief is called for in this application because it is always open to the petitioner to take recourse to law whenever the need arises.

The application is disposed of in the aforesaid terms."

10. The petitioner filed a complaint dated 7th June, 1992, with the SHO, Vinay Nagar Police Station requesting for registration of an FIR under Section 302 of the Indian Penal Code against SI D.P. Singh and under Sec- tion 218 of the Indian Penal Code against DCP, Deepak Misra. No FIR was registered pursuant to the complaint which necessitated the petitioner moving C.M. 7782 of 1992 in C.W. 3393 of 1990 for directions that the FIR be registered. The High Court, by its order dated 12th June, 1993, disposed of the aforesaid application on the basis of a statement made by the Addi- tional Solicitor General on behalf of the respondent, as follows :

"The Addl. Solicitor General submits that an FIR has been registered and the requisite affidavit will be filed within this week. He further submits that the investigation is likely to be completed within a period of three months and the report will be filed within a period of four months from today.

In this view of the matter no further order is called for and the application stands disposed of."

11. Consequent to the registration of FIR, charge-sheet under Section 193/304-A of the Indian Penal Code against SI D.P. Singh was submitted. In the case of Deepak Misra, the Investigating Officer stated that :-

"the additional DCP was neither charged with preparation of any record or other writing nor he prepared false record or other writing.... As such the opinion given by the Addl. DCP may not be covered under the provisions of Section 218 I.P.C..."

Hence no charge-sheet was filed.

12. The petitioner not being content with this, lodged a protest petition on 3rd September, 1994, in the court of Metropolitan Magistrate, Delhi, praying, inter alia, that the court take cognizance of the offence under Section 218 of the Indian Penal Code against DCP, Deepak Misra. The learned Metropolitan Magistrate by order dated 5th September, 1994, held that prima facie Mr. Deepak Misra had committed an offence under Section 218 of the Indian Penal Code and directed the prosecution to obtain sanction for prosecution of Deepak Misra. The petitioner vigorously pursued the respond- ent to grant sanction under Section 197 of the Criminal Procedure Code, ultimately by Order No. 14036/15/94 UTS dated 8th April, 1997, sanction for prosecution of Deepak Misra was declined. Aggrieved thereof, the petitioner filed the present writ petition (Criminal Writ Petition No. 454 of 1998) with the prayer that the order declining sanction be quashed as also a direction commanding the respondent to grant sanction under 197 of Criminal Procedure Code for prosecution of Mr. Deepak Misra for offence under Sec- tion 218 of the Indian Penal Code.

13. Counter-affidavit was filed by Mr. Jalal Srivastava, Director, Minis- try of Home Affairs, who took up the stand that the respondent have refused grant of sanction under Section 197 of Criminal Procedure Code for the prosecution of Deepak Misra after "fullest consideration " of circumstances of the firing, inquiry report statement of witnesses and that the Order No. 14036/15/94-ITS dated 8th April, 1997, conveying the executive decision for refusal to grant sanction under Section 197 of Criminal Procedure Code was passed after taking all material into consideration. He denied that the order is arbitrary, unreasonable, mechanical or passed without application of mind and that the findings of the High Court and the Metropolitan Magis- trate have been kept fully in view along with all relevant material on record before passing the aforesaid order dated 8th April, 1997.

14. We have noted the contentions of the parties, carefully gone through the record of the case and had directed the respondent to place before us the file pertaining to the question of sanction of prosecution of Deepak Misra. The file was produced by the respondent, which we have gone through with great care.

15. Section 197 of Criminal Procedure Code which places a bar on the court taking cognizance of such offences as stated therein except with the previ- ous sanction, pre-supposes that the sanction once granted by an authority, lifts the bar of prosecution, therefore, the grant of sanction is not an ideal formality nor an acrimonious exercise but a solemn and sacrosanct act which affords protection to a Govt. servant against fraudulent prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the innocent but not a shield for the guilty. In Gokulchand Dwarkadas Morarka Vs. The King, AIR 1948 PC 82, it was pointed out :

"The sanction to prosecute is an important matter, it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seems to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as in-expedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case."

16. The validity of the sanction necessarily, therefore, depends upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanction- ing authority.

17. To show that the sanctioning authority has applied its mind and con- sidered the evidence and other material placed before it, it is permissible to place relevant files before the court. The Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, has held :

"Since the validity of 'sanction' depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfac- tion whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning author- ity, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be ad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecu- tion."

18. The argument, that the High Court and the Metropolitan Magistrate having held that prima facie case was made out against Mr. Deepak Misra and, therefore, sanction had to be granted, would be contrary to the decisions cited above. what has to be seen is whether the sanctioning authority has applied its mind to the material placed before it and that all relevant material was placed before it and also that the application of mind was its own and independently exercised. The court while dealing with the cases of sanction does not sit as a court of appeal but merely reviews the manner in which the decision was made, particularly, as the court does not have the expertise to correct the administrative decisions. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The duty of the court is to confine itself to the question of legality. Its concern should be as to whether: (i) the decision making authority exceeded its powers (ii) committed an error of law: (iii) committed a breach of rule of natural justice (iv) reached a decision which no reasonable tribunal would have reached or (v) abused it powers. In Mansukhlal's case (supra) the Supreme Court has quot- ed, with approval, Lord Denning who says :

"Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the Courts will not themselves take the place of the body of whom Parliament has entrusted the decision. The Courts will not themselves embark on a rehearing of the matter : See Healey Vs. Minister of Health (1955)1 QB 221."

Lord Denning further observed as under :

"If the decision-making body is influenced by the considerations which ought not influence it, or fails to take into account matters which it ought to take into account the court will interfere : see, pad field Vs. Minister of Agriculture, Fisheries and Food, 1968 AC 997."

19. In Sterling Computers Ltd. Vs. M/s M & N Publications Ltd. and other Supreme Court pointed out that while exercising the power of judicial review, the court is concerned primarily as to whether there has been any infirmity in the decision making process of the case. The Supreme Court, with approval, quoted from professor Wade's Administrative Law which reads as follows :

"The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The Court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leave to the deciding authority the full range of choices which legislature is presumed to have intended."

20. In U.P. Financial Corporation Vs. M/s Gem Cap (India) Pvt. Ltd. and others. , it was observed as under:

"The obligation to act fairly on the part of the administrative authorities was evolved to ensure the Rule of law and to prevent failure of justice. The doctrine is complementary to the princi- ples of natural justice which the Quasi-Judicial Authorities are bound to observe, it is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this court as far back as 1970 in A.K. Kraipak Vs. Union of India, . Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known more than one choice is available to the administrative authorities ; they have a certain amount of discretion available to them. They have "a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred" (Lord Diplock in Secretary of State of Education Vs. Tameside Metropolitan Borough Council - 1977 AC 1014 at 1064). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the adminis- trative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene."

21. In the background of the above principles, we have examined the mate- rial placed before the sanctioning authority and its reasoning. We found that the sanctioning authority had considered the impact of the order of the High Court as also the Metropolitan Magistrate and by detailed reason- ing came to the conclusion that sanction be not accorded. The sanctioning authority, therefore, having applied its mind diligently to the material placed before it, its order No. 14036/15/94/-UTS dated 8th April, 1997, cannot be faulted with as the same does not suffer from any legal infirmi- ty. The writ petition, accordingly, must fail and is dismissed. The origi- nal record be returned through counsel for onward transmission to the concerned department.