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2007 DIGILAW 1472 (PAT)

Kishore Kumar v. State Of Bihar

2007-09-07

GHANSHYAM PRASAD

body2007
Judgment 1. This application has been filed to quash the order dated 5.1.2007 passed by the Chief Judicial Magistrate, Nawadah in Sirdalla (Meskaur) P.S. Case No. 145/05 thereby cognizance under Ss. 302/34 of the Indian Penal Code and Sec. 27 of Arms Act has been taken against the petitioner and others. 2. Heard learned counsel for the petitioner as well as Opposite Party no. 2. 3. It is submitted by learned counsel for the petitioner that the petitioner was the officer-in-charge of Meskaur Police Station. On the alleged date of occurrence i.e. 3.11.2005 the petitioner along with armed constables had gone to village Paroria to raid the hosue of one Md. Ashraf, who was running a mini gun factory. A large number of arms and ammunition were recovered. Accordingly, Ashraf was arrested and on the basis of statement of the petitioner Sirdalla P.S. Case No. 143/05 was registered against Md. Ashraf under provisions of Arms Act (annexures 2 and 3). It is further submitted that while the petitioner along with police party were returning after raid and arrest of the accused and when reached near Imambara of Bijubigha market a mob of about 100-150 persons of villagers were found blocking the road. Seeing the police party they began to raise slogans and attempted to rescue Md. Ashraf. They also began pelting stones upon the police party. Several police personnels received injury. In the melee one person received gun shot injury probably due to firing made by some-one from the mob. A case bearing Sirdalla P.S. Case No. 144/05 was registered under Ss. 147, 148, 149, 186, 353, 224, 225, 337, 336, 426, 323, 341, 307 of the Indian Penal Code and 27 of Arms Act. Later on, the present case was instituted on the basis of Fardbeyan lodged by one Uday Kumar for murder of his brother Pawan Kumar Mishra. It is further submited that from the facts stated above it is quite apparent that the alleged occurrence took place while the pettitioner was discharging his official duty and, therefore, he is protected under the umbrella of Sec. 197 of the Code of Criminal procedure. Taking cognizance without sanction u/s. 197 of the Code of Criminal Procedure is bad and illegal. 4. It is further submitted that sanction u/s. 197 of the Code of Criminal Procedure for prosecution of a public servant is pre-requisite for taking cognizance. Taking cognizance without sanction u/s. 197 of the Code of Criminal Procedure is bad and illegal. 4. It is further submitted that sanction u/s. 197 of the Code of Criminal Procedure for prosecution of a public servant is pre-requisite for taking cognizance. It is also submitted that question of sanction u/s. 197 of the Code of Criminal Procedure goes to the root of the jurisdiction of the Court and, therefore, question cannot be postponed and it has to be decided right now. For the above submission learned counsel for the petitioner has mainly relied upon two decisions of the Apex Court Rakesh Kumar Mishra V/s. State of Bihar and Others, 2006 1 SCC 557 and Sankaran Moitra V/s. Sadhna Das and Another, 2006 4 SCC 584 . 5. On the other hand it is submitted by learned counsel for the State that it is out and out a case of murder of an innocent person by the police. Merely because the petitioner is a police personnel, his illegal act and highhandedness cannot be proteced u/s. 197 of the Code of Criminal Procedure. It is further submitted that mere fact that the petitioner proposes to raise a defence of act having purported to be done in due discharge of official duty will not in itself be sufficient to justify the case being thrown out for want of sanction. The necessity of sanction being mixed questions of fact and law is to be decided only by the lower Court at the stage of trial and not in a summary proceeding u/s. 482 of the Code of Criminal Procedure. For that learned counsel for the State has relied upon several decisions of the Apex Court; Pukhraj V/s. State of Rajasthan and anr., AIR 1973 SC 2591 , Bakhshis Singh Brar V/s. Smt. Gurmej Kaur and another, AIR 1988 SC 257 , A.K. Singh and others V/s. Uttrakhand Jan Morcha and others, AIR 1999 SC 2193 , P.K. Pradhan V/s. The State of Sikkim, AIR 2001 SC 2547 and Raj Kishore Roy V/s. Kamleshwar Pandey and another, AIR 2002 SC 2861 . 6. In view of the rival submission the preliminary question to be decided in this case is as to whether it can be proper and legal to decide the necessity of sanction u/s. 197 of the Code of Criminal Procedure in a summary proceeding u/s. 482 of the Code of Criminal Procedure. 6. In view of the rival submission the preliminary question to be decided in this case is as to whether it can be proper and legal to decide the necessity of sanction u/s. 197 of the Code of Criminal Procedure in a summary proceeding u/s. 482 of the Code of Criminal Procedure. 7. In order to decide this question it is necessary to go into various pronouncements of the Apex Court on this point. The earliest decision cited by the State is reported in AIR 1973 SC 2591 (supra). In that very case the accused challenged the cognizance order on the ground of want of sanction u/s. 197 of the Code of Criminal Procedure before the Magistrate. The Magistrate rejected his prayer. However in a revision filed by the accused against the order of Magistrate, the High Court set aside the order of cognizance for want of sanction. The Supreme Court allowed the appeal preferred against the order of High Court and in paragraph 3 of the judgment held as follows: "We must make it clear that this is not the end of the matter. As was pointed out in Sarjoo Prasad V/s. King Emperor, 1945 0 FCR 227 referring to the observations of Suliman J, In Hori Ram Singhs case (Supra) the mere fact that the accused proposes to raise a defence of the act having purported to be done in execution of duty would not in itself be sufficient to justify the case being thrrown out for want of sanction. At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to in purported execution of his duty. But facts subsequently coming to light during the course of the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the progress of the case (see observations in 1955 2 SCR 925 (supra). Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the progress of the case (see observations in 1955 2 SCR 925 (supra). In 1971 1 SCR 317 (supra) also it was pointed out that it would be open to the appellant (the 2nd respondent in this case) to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter-related with his official duty so as to attract the protection afforded by Sec. 197 of the Code of Criminal Procedure." 8. In a case reported in AIR 1988 SC 257 (Supra) also it was a case of murder alleged to be committed by the police. The accused raised the question of want of sanction at the initial stage of the trial before the Additional District and Sessions Judge. The Additional District and Sessions Judge rejected his prayer with observation that it could decide the question of necessity of sanction after gathering materials and some evidence. The High Court in a proceeding u/s. 482 of the Code of Criminal Procedure also refused to entertain. Against that accused preferred appeal before the Supreme Court and Supreme Court also dismissed the appeal and in paragraph 6 it has been held as follows: "In the instant case, it is alleged that grievous injuries were inflicted upon the complainant and as a result of injuries one of the alleged accused had died. The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would result in such consequence. It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind Sec. 196 and Sec. 197 of the Code of Criminal Procedure. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind Sec. 196 and Sec. 197 of the Code of Criminal Procedure. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported in discharge of his duties and whether the public servant has exceeded his limit. It is true that Section 197 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence." 9. The other decision reported in AIR 1999 SC 2193 (Supra) has been rendered by a Bench of three Hon ble Judges. In that very decision the question of power of High Court to decide the issue of sanction at preliminary stage has been considered and in paragraph 23 it has been held as follows: "The question of necessity of sanction need be conside red by the Sessions Judge if and when raised by the accused. We have no doubt that the High Court should not have embarked upon a discussion regarding sanction at such a premature stage, that too in the writ petition filed by the Samity. If the finding of the High Court is that no sanction is required, such finding has to be treated as bad mainly because that question has to be decided after taking into account various considerations including the fact situation in each case." 10. The other decision reported in AIR 2001 SC 2547 has also been rendered by three Hon ble Judges. In that very case also the main question which has been dealt is necessity of decision of issue of sanction as preliminary issue. The other decision reported in AIR 2001 SC 2547 has also been rendered by three Hon ble Judges. In that very case also the main question which has been dealt is necessity of decision of issue of sanction as preliminary issue. In paragraph 15 the Apex Court after consideration of various decision of Apex Court has held as follows: "Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection u/s. 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of in 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 involing protection u/s. 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 connectidn between them and the performance of those duties, 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 falls 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 on 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 he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the due course of trial by giving opporunity 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." 11. The last decision cited by the State is reported in AIR 2002 SC 2861 (Supra). 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." 11. The last decision cited by the State is reported in AIR 2002 SC 2861 (Supra). In that very case also similar question fell for consideration before the Apex Court. The Apex Court left open the question of necessity of sanction to be decided in the main judgment. In paragraph 11 of the judgment it has been held as follows: "In this case, as indicated above, the complaint was that the 1 st Respondent had falsely implicated the Appellant and his brother in order to teach them a lesson for not paying anything to him. The complaint was that the 1 st Respondent had brought illegal weapon and cartridges and falsely shown them to have been recovered from the Appellant and his brother. The High Court was not right in saying that even if these facts are true then also the case would come within the purview of Sec. 197 of the Code of Criminal Procedure. The question whether these acts were committed and/or whether 1st Respondent acted in discharge of his official duties could not have been decided in this summary fashion. This is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in the official course of his duty. The question whethert he 1st Respondent acted in the course of performance of duties and/or whether the defence is pretended or fanciful can only be examined during the course of trial. In our view, in this case the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of trial." 12. Now come to the decisions cited by the petitioner. In decision reported in 2006 1 SCC 557 (Supra) it has been held in paragraph 6 as follows: "Before Sec. 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. In decision reported in 2006 1 SCC 557 (Supra) it has been held in paragraph 6 as follows: "Before Sec. 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this Section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty; if the answer the answer to this question is affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Sec. 197 does not get immediately attracted on institution of the complaint case." 13. In paragraph 22 of the decision reported in AIR 2006 4 SCC 584 (Supra) almost similar view has been expressed which runs as follows: "Learned counsel for the complainant argued that want of sanction u/s. 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defence available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited clearly indicate that a prosecution hit by that provisions cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question." 14. From the above discussions of various decisions of the Apex Court cited above it is quite clear that the question of necessity of sanction does not invariably arise at the inception of the case. It may be decided at the subsequent stage of the case depending upon the facts and circumstances of the case. However, preponderance of the view is that the question of necessity of sanction u/s. 197 of the Code of Criminal Procedure should be. left open to be decided in trial and not in a summary proceeding u/s. 482 of the Code of Criminal Procedure without affording opportunity to the parties to establish their case (See :1973 SC 2951, 1999 SC 2193, 1988 SC 257, 2001 SC 2547, 2002 SC 2861 (Supra). 15. So far allegation against this petitioner is concerned, it goes to show that the deceased was shot dead by him without any provocation. On the other hand, the petitioner has brought on record the first information report of Sirdalla P.S. Case Nos. 143/05 and 144/05 in order to show that the incident occurred during discharge of official duty. However, in First information report being Sirdalla P.S. Case No. 144/05 no allegation of death of the victim in course of discharge of duty has been taken. In the said case it has been alleged that the deceased died due to firing resorted to by some-one from the mob. Therefore, on facts it is not possibile to decide the necessity of sanction u/s. 197 of the Code of Criminal Procedure without collecting further materials. 16. In the result, this application is dismissed and the question of necessity of sanction is left open to be raised and decided at the appropriate stage of the trial.