TaxTMI 
TaxTMI 
2012 (9) TMI 988
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.... the Judicial Magistrate First Class, Jamshedpur, taking cognizance of the offences alleged in the complaint. 3. Brief facts of the case need to be stated: Appellant Kailashpati Singh is the complainant. On 23/7/2004, he filed a complaint in the Court of C.J.M, Jamshedpur being Complaint Case No.731 of 2004 against (1) Rajiv Ranjan Singh, Dy.S.P.-II, (2) Pradeep Kumar, S.I., (3) Omprakash, S.I., (4) Shyam Bihari Singh, constable and (5) Bharat Shukla, constable. In the complaint, the complainant alleged that his son Amit Pratap Singh @ Munna Singh (for convenience, "deceased Munna Singh") was killed in a fake encounter by the accused named in the complaint including three others on 1/7/2004 at about 10.30 p.m. at Domohani, Sonari, Jamshedpur. According to the complainant, he received telephonic message on 2/7/2004 from one Sanjay Kumar of Jamshedpur that his son was killed in an encounter. This news was also published in the local newspapers of Jamshedpur. As per the newspaper report, along with the deceased, three others viz. Rajib Dubey, Babloo Prasad and Rambo were also killed. According to the complainant, he rushed to Jamshedpur with his eldest son Krishna Singh and contacte....
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....as disclosed in the FIR lodged by the Dy.S.P. Rajiv Ranjan Singh that, having received information about this incident, the police set out to arrest the accused. They traced them and asked them to surrender. However, instead of surrendering, they fired at the police. The police had to retaliate to save themselves and, in that, four criminals were killed. The rest escaped. Son of the complainant was one of those who were killed. 5. By the impugned judgment and order, the High Court allowed the petition filed by Rajiv Ranjan Singh, Dy.S.P., on the ground that sanction required under Section 197 of the Code was not obtained. The order impugned before the High Court to the extent it took cognizance of the offences against him, was quashed. So far as the other police personnel are concerned, the High Court dismissed their petition on the ground that no notification issued under Section 197(3) of the Code was produced by them to show that they were protected against prosecution in respect of any offence alleged to have been committed while acting or purporting to act in discharge of their official duties. 6. Being aggrieved by the rejection of their prayer for quashing the complaint, a....
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....remated without informing the members of his family. Counsel further submitted that in the FIR lodged by Jeevan Naredi, it is stated that blood was found at the site of occurrence. However, no such blood was found. Counsel submitted that the police diaries do not show the movements of the police during the period of encounter. Falsity of the encounter theory is evident because none of the members of the police party received injuries. Counsel pointed out that there are no credible private witnesses, to depose about the alleged encounter. The police have asserted that deceased Munna Singh was involved in a serious crime which took place in 1994. Relying on the certificate issued by Bihar School Examination Board in which birth date of deceased Munna Singh is shown as 10/1/1985 [Annexure P-1 in the appeal filed by the complainant], counsel contended that deceased Munna Singh was only nine years of age in 1994. Therefore, this is really a concocted case. Counsel pointed out that after the complainant filed a complaint on 27/7/2004, on 31/8/2004, three challans were filed against deceased Munna Singh just to show that he was a dreaded criminal. All these circumstances show that the pol....
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.... in this case, there are unimpeachable circumstances which establish that deceased Munna Singh along with others had fired at the house of Jeevan Naredi and fled from there. The police tried to arrest them. They fired at the police. The police fired in defence and in performance of their duty. They cannot, therefore, be prosecuted without sanction. The prosecution initiated against the police personnel without sanction must, therefore, be quashed. Counsel refuted each and every allegation made by Mr. Gonsalves. 12. Certain material facts which can be gathered from the documents, which are on record need to be stated. It would be necessary first to refer to the FIR lodged by Jeevan Prasad Naredi, whose house was attacked by the criminals because it is first in point of time. In his FIR dated 1/7/2004 lodged at PS Bistupur at 2330 hrs, Naredi stated that he is a scrap dealer, who purchases scrap from Telco and Tisco to supply the same to Telco Foundry Jamshedpur. He stated that on 1/7/2004 in the night at 9.45 p.m., he was in his office which is situated in his residence. Suddenly, at 9.50 p.m., some rounds of fire were fired at the room used by him as office. The bullets hit the ou....
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....were from the police force. As soon as they heard this, suddenly, one of them took out a pistol from his vest and fired. A shot hit the glass of Sumo Car. The police party was miraculously saved. Dy.S.P. Rajiv Ranjan Singh got out of the car and told his police team to take safe positions. He asked the criminals to surrender, but they divided themselves into two pairs and started firing at the police team. The police also started firing in defence. At that time, SHO, D.K. Srivastava, PO Sonari also came there along with other police personnel. Dy.S.P. Rajiv Ranjan Singh gave a call on his mobile to PCR and Patrol Officer about the encounter. The criminals had taken positions behind a tree. The firing continued for 15 to 20 minutes. Thereafter, they ran towards Nirmal Basti. Dy. S.P. Rajiv Ranjan Singh and others went to the spot and found that two criminals were lying dead near riverside and two criminals were lying in injured condition behind the tree. 14. On receiving information about the encounter, Superintendent of Police Jamshedpur, Assistant Superintendent of Police Saket Kumar, City Police Superintendent, Superintendent of Police, etc. came there. Articles lying at the see....
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....bile bearing no.9835186118, 9835374951, 9431066524. From the rear pocket of Munna Singh, a ballet marked 'Bihar Police' on it containing Rs. 500x8+50x1+10x1 total Rs. 4,060 and an identity card of Bihar Police showing Munna Singh in police uniform with following details : Name Saroj Kumar Singh; Post - Arakshi (729) with seal of Arakshi Adhikshak, Rohtas. An ATM Card of HDFC Bank of Amit Pratap Singh bearing no.4386241704739313, two telephone diaries, one Receipt Book of Jamshedpur Cooperative College bearing no.02192 of Amit Pratap Singh 9, A-1 Roll No.337, a railway ticket of Bhagalpur Surat Express train no.9048 dated 28.6.2004 for Rs. 781 of PNR No.613-9472666 from Jamalpur Junction to Baxar and other papers. xi) xxx xxx xxx xii) xxx xxx xxx xiii) In the South-West across the road along the river - wit....
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.... to launch a counter attack to save themselves and also to nab the criminals, which was their legal duty and in this counter attack, four of the criminals received bullet injuries and succumbed to those injuries. The death of four criminals in the firing was preceded by an attack by them on businessman Naredi's house and also an attack on the police personnel. There is no doubt that the criminals had set out on a mission to attack Naredi's house so as to recover ransom. From the weapons found lying at the scene of occurrence, we feel that the criminals had taken to the life of crime and were not novices. The past record of the criminals support this conclusion of ours. 18. In this connection, it is necessary to refer to the affidavit of Dy. S.P. Mr. S.K. Kujur. It brings certain important facts on record. Mr. Kujur has begun by describing the attack made by the deceased along with his friends on businessman Jeevan Naredi for extortion on the night of 1/7/2004 at around 9.15 p.m. He has referred to Jeevan Naredi's FIR lodged with Bistupur Police Station which was registered as Bistupur Police Station Case No.134 of 2003. He has then stated how after the incident the criminals fled ....
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....79 I.P.C. f. Bistupur P.S. Case No.149/03 u/s. 307/387/34/120(B) IPC and section 27 of the Arms Act. g. Sakchi P.S. Case No.144/03 under sections 324/307/387/34 I.P.C. and 27 Arms Act. h. Parsudhih P.S. Case No.182/03 u/s. 414 I.P.C. and section 25(1- B)(a)/26/35 of the Arms Act. i. Sonari P.S. Case No.12/04 u/ss. 387/326/307/34 I.P.C. and section 27 Arms Act. Accused Prakash Anand alias Ramesh alias Rambo (since deceased). a. Telco P.S. Case No.266/02 u/s. 379 I.P.C. b. Saraikella P.S. Case No.70/02 u/s. 392/411 I.P.C. c. Telco P.S. Case No.268/97 u/s. 392/411 I.P.C. d. Telco P.S. Case No.273/97 u/s. 392/411 I.P.C. e. Bistupur P.> Case No.214/97 u/s. 392 I.P.C. f. Telco P.S. Case No.278/97 u/s. 25(1-b)/A/26 of the Arms Act. g. Telco P.S. Case No.258/92 u/s.394 and 397 I.P.C. Accused Rajiv Kumar Dubey alias Raju Dubey. a. Sadar Chaibasa P.S. Case No.10/01 u/ss. 307/120(B) IPC and section 4/5/6 of Explosive Substance Act. b. Bistupur P.S. Case No.125/03 u/s. 25 (1-b)/A/26/35 Arms Act. c. Adityapur P.S. Case No.139/04 u/ss.392/411 I.P.C." 20. Finally, Dy.S.P. Kujur has stated that the State of Jharkhand got the entire matter thoroughly inquired into by Deputy Commission....
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....rther states that Mr. Sharma, learned Magistrate (Law & Order Jamshedpur) came to the spot and prepared the inquest report. Important extracts from the inquest report are noted in the report. So far as the deceased is concerned, the inquest report states that he had bleeding wounds on the right stomach, right leg and near the elbow of the right arm. Injuries appeared to be bullet injuries. Statement of Dr. Prof. Akhilesh Kumar Chaudhary attached to MGM Medical College, Jamshedpur who had performed postmortem of some of the deceased criminals was also recorded. It is stated in the report that Dr. Chaudhary stated that there was no charring, blackening etc. found on the body which confirms that the bullets were fired from some distance. Reference is made to the statement of Dr. Lalan Chaudhary who had done postmortem of deceased Munna Singh i.e. the son of the complainant. Dr. Lalan Chaudhary has stated in his statement that there was no charring, blackening on the dead body. Postmortem report is also discussed. Similarly there is a detailed discussion on the report of the Forensic Laboratory. It is stated that the bullets were fired from the three pistols recovered from the scene of....
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....is age is shown as 28 years. It is not the case of the police that deceased Munna Singh was involved in any case of the year 1994. It is true that in the copy of the letter addressed by Dy.S.P. Jamshedpur to Superintendent of Police, Jamshedpur, Sonari P.S., Case No.15 of 1994 dated 6/3/1994 is shown to have been registered under Section 392 of the IPC against deceased Munna Singh. But as of today, it is the case of the police that he was not involved in this case. Perhaps, the information was related to some other person or the information was incorrect. It is not possible for us to hold that the police have made an attempt to involve him in Case No.15 of 1994. List of several other serious crimes in which according to the police, the deceased was involved, is given by Dy.S.P. Mr. Kujur in his affidavit in reply. We have reproduced it in the earlier part of this judgment. 24. The contention that no blood stains were found at the site of occurrence when PUCL visited the same has no merit. There is on record the detailed seizure memo which speaks about the recovery of blood stained soil. The inquest report, which is reproduced in the report of the CID confirms that the deceased had....
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....erefore, it is not possible to infer that post-mortem was not videographed because the police wanted to suppress something. We would like to make it clear that we have independently examined the relevant documents, like FIRs, postmortem notes, inquest report, seizure memo and extracts of FSL report and we are of the view that this is not a case of false encounter. We reject the case of the complainant that the police are guilty of killing deceased Munna Singh in cold blood in fake encounter. 29. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it. (K. Satwant Singh). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there i....
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....cial acts." 31. In Matajog Dobey, the Constitution Bench of this court was considering what is the scope and meaning of a somewhat similar expression "any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty" occurring in Section 197 of the Criminal Procedure Code (Act V of 1898). The Constitution Bench observed that no question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. On the question as to which act falls within the ambit of above-quoted expression, the Constitution Bench concluded that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of performance of his duty. While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lodged and on the allegations contained therein, the Constitution Bench referred to Hori Ram Singh and observed that at first sigh....
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....e had assaulted him and leveled false charges against him. The Judicial Magistrate, Bhagalpur, issued summons. Respondent 1 filed a petition for quashing the order issuing summons on the ground that sanction under Section 197 of the Code has not been obtained. The High Court quashed the said order on the ground that there was no sanction to prosecute respondent 1. In the facts before it, this court observed that the question whether respondent 1 acted in discharge of his duty, could not have been decided in a summary fashion. This court observed that it was the appellant's case that respondent 1 had brought an illegal weapon and cartridges and falsely shown them to have been recovered from the appellant. This court observed that this is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity be given to the defence to establish that he had been acting in the official course of his duty. There is thus a clear indication that this court had restricted its observations to the facts before it. It is pertinent to note that this court referred to the Constitution Bench Judgment in Matajog Dobey and observed that in that cas....
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....no means to hold in the circumstances alleged that the prosecution of the appellant was in connection with such action as the complaint did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise. It is in this background that the court observed that the jurisdiction of this court to proceed with the complaint emanates from what is alleged in the complaint and not from what is finally established in the complaint as the result of the evidence recorded. Pertinently this court made reference to the Constitution Bench judgment in Matajog Dobey where it is observed that whether sanction is necessary or not may have to be determined from stage to stage. In our opinion, the observation of this court that the mere allegation made by the appellant-police officer that the action taken by him was in performance of his duty, will not force the court to throw away his complaint of which it had properly taken cognizance on the basis of the allegations in the complaint will have to be read against the peculiar facts of the case and not as stating something which runs counter to the law laid down by the Constitution Bench....
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....anction 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." This Court also observed that postponing a decision on the applicability or otherwise of Section 197(1) of the Code can only lead to the proceedings being dragged on in the trial court and a decision by this Court here and now would be more appropriate in the circumstances of the case especially when the accused involved are police personnel and the nature of the complaint made is kept in mind. 37. The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Co....