SCR.A/136/2007 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 136 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= YANTIDEVSINH LALUBHA ZALA & 2 - Petitioners Versus STATE OF GUJARAT & 1 - Respondents ========================================================= Appearance : MR PR ABICHANDANI for Petitioners. MR KT DAVE, APP for Respondent No.1. MR HARDIK S SONI for Respondent No. 2 ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/05/2008 CAV JUDGMENT 1. Rule. Mr.K.T.Dave, learned Additional Public Prosecutor waives service of Rule on behalf of SCR.A/136/2007 2/42 JUDGMENT respondent No.1-State of Gujarat and Mr.Hardik Soni, learned advocate waives service of Rule on behalf of respondent No.2-original complainant. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal. 2. By way of this petition under Articles 226/227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, the petitioners herein – original accused Nos. 1,2 and 3 (hereinafter referred to as “accused”) have prayed for an appropriate writ, direction and/or order directing to quash and set aside the judgment and order dated 16.01.2007 (Annexure-A) passed by the learned Presiding Officer, Fast Track Court and Additional Sessions Judge, Rajkot in Criminal Revision Application No.1/2007 in dismissing the said Revision Application and confirming the order dated 15.12.2006 passed by the learned JMFC, Rajkot in Criminal Inquiry Case No.156 of 2004 in issuing non- bailable warrants against the petitioners for the offences punishable under Sections 302, 34, 120-B, SCR.A/136/2007 3/42 JUDGMENT 447, 448, 506(2) of Indian Penal Code. It is also further prayed to quash and set aside the order dated 15.12.2006 passed by the learned JMFC, Rajkot in Criminal Inquiry Case No.156 of 2004 subsequently renumbered as Criminal Inquiry Case No.10997 of 2006 and so also to quash Criminal Inquiry Case No.156 of 2004 subsequently numbered as Criminal Case No.10997 of 2006. Petitioner No.1 was working as Head Constable and petitioner Nos. 2 and 3 were working as Police Constables at 'B' Division Police Station, Rajkot Police Station at the relevant time when the incident took place. 3. Facts leading to the present petition in nutshell are as under: 3.1 A private complaint came to be lodged by respondent No.2 – original complainant, mother of the deceased Salim in the Court of learned JMFC, Rajkot being Criminal Inquiry Case No.156/2004 subsequently numbered as Criminal Case No.10997 of 2006 on 12.05.2004 against all the accused for the offences punishable under Sections 302, 34, 120-B, SCR.A/136/2007 4/42 JUDGMENT 447, 448, 506(2) of the Indian Penal Code alleging inter-alia that on 04.05.2004 when her deceased son Salim was in the falia of the residential premises, accused persons named in the complaint-petitioners herein visited the said premises and when her deceased son Salim said 'come Yantidev', accused no.1 fired one round from his revolver and said accused also placed revolver on the head of the complainant and threatened the complainant by using abusive language; they shot dead her son – Salim and therefore, it was alleged that the accused had committed the offences as alleged. That said complaint was recorded on 12.05.2004, and the learned JMFC, Rajkot passed an order for holding inquiry under Section 202 of the Criminal Procedure Code (hereinafter referred to as “the Code”) and the matter was fixed on 29.05.2004. That during the course of the inquiry under Section 202 of the Code, statements of Hasinaben – sister-in-law of the deceased; Mariyamben wife of the deceased; Kadir Gagji, elder brother of the deceased were recorded on 29.05.2004. Statement of one Mumtaz was also recorded on 15.12.2004 and the statement of Iqbal was SCR.A/136/2007 5/42 JUDGMENT recorded on 20.01.2005. Vide Exh.16 an application was submitted to produce post-mortem report. Statement of Dr.Premji who conducted post-mortem was recorded. Considering the evidences led in the inquiry and after having prima facie satisfied, learned Magistrate passed an order dated 15.12.2006 whereby it was directed that complaint be recorded/registered and non-bailable warrants be issued against the petitioners herein – accused under the provisions of Section 204(1)(b) of the Code for the offences punishable under Sections 302, 34, 120- B, 447, 448, 506(2) of the Indian Penal Code. That thereafter one Criminal Misc.Application No.14556 of 2006 was preferred by the accused - petitioners herein before this Court under Section 482 of the Code, to quash the complaint and proceedings and the order dated 15.12.2006 passed by the learned JMFC, Rajkot issuing non-bailable warrants against the petitioners and directing to register the complaint. Said application came to be filed on 19.12.2006 and the application came to be heard by the learned Single Judge of this Court. Learned Advocate appearing on behalf of the petitioners after arguing SCR.A/136/2007 6/42 JUDGMENT the matter at length withdrew the said application without inviting any reasons and the said application came to be disposed of as withdrawn vide order dated 21.12.2006. That thereafter, the petitioners preferred Criminal Revision Application No.1 of 2007 before the learned Presiding Officer, 2nd Fast Track Court, Rajkot challenging the order passed by the learned JMFC, Rajkot directing to issue non-bailable warrants against the petitioners and directing to register the complaint against the petitioners for the offences punishable under Sections 302, 34, 120- B, 447, 448, 506(2) of the IPC. It was mainly submitted on behalf of the learned Advocate appearing on behalf of the petitioners that they have not committed any offence as alleged and that the act alleged to have been committed by the petitioners while acting or purporting to act in discharge of their official duty and therefore, Section 197 of the Code is attracted, and there is no sanction from the competent authority obtained, before taking cognizance by the Court, the complaint requires to be quashed and set aside and so also the order passed by the learned JMFC, Rajkot issuing non-bailable SCR.A/136/2007 7/42 JUDGMENT warrants against the petitioners and directing to register the complaint against the petitioners requires to be quashed and set aside as the same is hit by Section 197 of the Code. That the learned Presiding Officer 2nd Fast Track Court, Rajkot by his judgment and order dated 16.01.2007 dismissed the said Revision Application. 3.2 Being aggrieved and dissatisfied with the same, the petitioners – original accused have preferred the present petition under Articles 226/227 of the Constitution of India read with Section 482 of the Code, for the aforesaid reliefs. 4. Mr.P.R.Abichandani, learned Advocate appearing on behalf of the petitioners herein – accused has mainly made submission on the aspect of sanction required under Section 197 of the Code, by further submitting that offences alleged to have been committed by the petitioners were while acting in discharge of their official duty. It is submitted by him that the petitioners were discharging their duty as Police Constables in the Surveillance Squad at 'B' SCR.A/136/2007 8/42 JUDGMENT Division Police Station, Rajkot and were required to visit checking, prohibition and bootlegging etc. and after making necessary entry in the Station Dairy No.14 on 04.05.2004 at 12.05 hrs, all the petitioners started taking round on the basis of the intelligence/ information received by petitioner No.1 that one history sheeter Salim was actively indulging in bootlegging activities and selling country made liquor, and on the basis of said information, the petitioner No.1 visited the said place. On seeing the squad personnel, deceased Salim, who was in intoxication state, took out knife from the waist region and tried to give blow on chest of the petitioner No.1 and the petitioner No.1 received injuries on the right hand figures. It is therefore, petitioner no.1 shown his life in great danger and in an attempt to defend himself took out revolver and fired one shot in his self defence, therefore, the petitioners were on official duty and the incident took place while they were performing their official duty. It is submitted that as the offences alleged to have been committed by the petitioners is while acting in discharge of their official duties, Section SCR.A/136/2007 9/42 JUDGMENT 197 of the Code is attracted, and as there is no sanction, the learned trial Court ought not to have taken cognizance and ought not to have issued process/ summons upon the petitioners and ought not to have directed to register the complaint against the petitioners for the offences punishable under Sections 302, 34, 120-B, 447, 448, 506(2) of the IPC. It is submitted that the learned Revisional Court has materially erred in not appreciating the judgments/decisions cited on behalf of the petitioners and has materially erred in dismissing the said Revision Application considering the order passed by the learned JMFC, Rajkot. 4.1 Mr.Abichandani, learned Advocate appearing on behalf of the petitioners has vehemently relied upon the decision of the Hon'ble Supreme Court in the case of Sankaran Moitra v/s. Sadhana Das & Anr. reported in (2006) 4 SCC 584. He has also relied upon following decision in support of his prayer to quash the impugned complaint as well as the order passed by the learned JMFC, Rajkot in absence of any sanction as required under Section 197 of the Code. SCR.A/136/2007 10/42 JUDGMENT (1) Prakash Singh Badal and Another vs. State of Punjab and others reported in 2006(8) Supreme 964. 4.2 Mr.Abichandani, learned Advocate appearing on behalf of the petitioners has also relied upon the following decisions in support of his submission that plea of bargaining against cognizance for want of sanction touches jurisdiction of the Code and can be raised at any stage of proceedings and the accused are not required to wait till framing of the charges and/or cross examination of the prosecution witnesses and the learned Magistrate is not required to confine himself to the allegations in the complaint. (1) Suresh Kumar Bhikhamchand Jain vs. Pandey Ajay Bhushan reported in 1998(1) SCC 205. (2) Abdul Wahab Ansari vs. State of Bihar and Another reported in (2000) 8 SCC 500. 4.3 It is also submitted by Mr.Abichandani, learned Advocate appearing on behalf of the petitioners that impugned complaint is nothing but an SCR.A/136/2007 11/42 JUDGMENT attempt on the part of the complainant to falsely implicate the petitioners in a very serious offence. It is also further submitted that deceased was a history sheeter and there were as many as 22 criminal cases registered against him. It is also further submitted that even private complaint came to be filed after delay of 8 days and the complainant had chosen to file private complaint which is nothing but classic example of abuse of process of law. It is also further submitted by him that as held by the Hon'ble Supreme Court in catena of decisions, sanction would be required if nexus between accused alleged to have been committed and discharge of duty is shown and there is reasonable connection between alleged offences and discharge of duty. By making above submissions, and relying upon aforesaid decisions, it is required to allow the present application and grant reliefs as prayed for. 5. The application is opposed by Mr.K.T.Dave, learned APP appearing on behalf of the State and Mr.Hardik Soni, learned Advocate appearing on behalf of the complainant. Mr.Soni, learned Advocate SCR.A/136/2007 12/42 JUDGMENT appearing on behalf of the complainant has submitted that present application requires to be dismissed on the ground of suppression of material facts. It is submitted that in the petition, initially the petitioners have never submitted and/or pleaded that earlier they had preferred Criminal Misc. Application No.14556 of 2006 for quashing the impugned complaint and order dated 15.12.2006, which came to be withdrawn. Under the circumstances, it is requested not to grant any discretionary reliefs. On merits, it is submitted that when the deceased son of the original complainant was done to death by the petitioners, by no stretch of imagination it can be said that offences alleged to have been committed by the petitioners while acting in their official duty. It is submitted that there was injury on the chest and heart was punctured and deceased was shot dead by point blank revolver which cannot be said they were acting in discharge of their official duty. It is also submitted that there are two different stories in the FIR given by petitioner No.1 at Rajkot Police Station being C.R. No.180 of 2004 as well as in first application being Criminal Misc. Application No.14556 SCR.A/136/2007 13/42 JUDGMENT of 2006. It is also further submitted by him that, so far as petitioner no.1 is concerned, earlier also petitioner no.1 was charged for fake encounter. It is submitted by him that in the facts and circumstances of the case, there is no question of any sanction or prosecution as required under Section 197 of the Code. It is also further submitted that earlier the very petitioners had filed Criminal Misc. Application No.14556 of 2006 under section 482 to quash the complaint and to quash and set aside the order dated 15.12.2006 which came to be withdrawn by the learned Advocate appearing on behalf of the petitioners after arguing the matter at length. Therefore, present application for the same relief is not maintainable as there are change circumstances shown subsequently. 6. Mr.K.T.Dave, learned APP appearing on behalf of the respondent No.1-State, while objecting to grant of any reliefs in the present petition has further submitted that, whether offences alleged to have been committed by the petitioners was while acting in discharge of their official duty or not, SCR.A/136/2007 14/42 JUDGMENT one has to consider factual background. It is submitted that, so far as the reliance placed upon station dairy no.14 showing entry with respect to checking, it is submitted that station dairy can be created document and station dairy is an entry with regard to general checking and not a particular place. Therefore, it is requested to dismiss the present application. 7. Mr. Soni, learned Advocate has relied upon the decision of the learned Single Judge of this Court in the case of S.S.Khandwawala, Addl. D.G.P. & Ors. V/s. State of Gujarat reported in (2003) 1 GLR 802. He has also relied upon following decisions in support of his prayer to dismiss the present application. (1) State of Orissa through Kumar Raghvendra Singh and Others vs. Ganesh Chandra Jew reported in (2004) 8 SCC 40. (2) Prabhudas Badaji Pandav vs. Faridmiya Huseinmiya Kadari and Another reported in 1993(1) GLH 143. (3) Raj Kishor Roy vs. Kamleshwar Pandey and Another reported in (2002) 6 SCC 543. SCR.A/136/2007 15/42 JUDGMENT (4) Bakshish Singh Brar vs. Gurmej Kaur and Another reported in (1987) 4 SCC 663. (5) P.K.Pradhan vs The State of Sikkim represented by the Central Bureau of Investigation reported in AIR 2001 SC 2547. 8. Now so far as the decision of the Hon'ble Supreme Court in the case of Sankaran Moitra (supra) relied upon by the petitioners is concerned, it is submitted by Mr.Soni, learned Advocate appearing on behalf of the complainant that on facts said decision will not be applicable to the facts of the present case. It is submitted by him that in the case of Sankaran Moitra (supra), incident took place on public place outside polling booth on election day and there was huge crowd and very few police personnels were there and there was no one to maintain law and order situation. In the said case there was direction and order by the Superior Officer to maintain law and order as there was huge mob and less police force, there was justification for fire. It is submitted that, so far as facts of the present case is concerned, incident took place at place of SCR.A/136/2007 16/42 JUDGMENT victim's home and there were three constables and victim was alone and there was no question of maintaining law and order situation. Deceased was shot in the heart/chest and heart was punctured and thus, there was no justification at all. Therefore, it is requested to dismiss the present application. 9. Heard the learned advocates appearing on behalf of the respective parties at length. Going through the Record & Proceedings of Inquiry Case No.156/2004 which subsequently came to be registered as Criminal Case No.10997 of 2006, it appears that the respondent No.2 herein filed a complaint in the Court of learned Judicial Magistrate, First Class, Rajkot against the petitioner herein – original accused on 12.5.2004 for the offences punishable under Sections 302, 34, 120- B, 447, 448, 506(2) of the Indian Penal Code alleging inter-alia that her son Salim has been killed/murdered due to enmity on 4.5.2004 by further alleging inter-alia that on 4.5.2004 when her deceased son Salim was in the falia of the residential premises, the respondent accused persons visited the said premises, the petitioner No.1 – SCR.A/136/2007 17/42 JUDGMENT original accused No.1 fired one round from his revolver and shot her son by firing on the chest and his heart was punctured, who succumbed to the injuries. It is also further alleged in the said complaint that the accused also placed revolver on the head of the complainant and threatened the complainant by using abusive language. The learned JMFC, Rajkot passed an order for holding inquiry under Section 202 of the Criminal Procedure Code, and during the inquiry, the learned JMFC, Rajkot recorded the statement of the witnesses as well as Dr.Premji, who conducted post-mortem and thereafter the learned JMFC, Rajkot, after having prima facie satisfied that the petitioners herein-original accused No.1 have committed the offences as alleged in the complaint and thereby directed to issue process against the accused persons after registering the complaint under Section 204(1)(b) of the Code for the offences punishable under Sections 302, 34, 120-B, 447, 448, 506(2) of the Indian Penal Code vide order dated 15.12.2006. It is the case on behalf of the petitioners-original accused that the petitioners were discharging their duties as Head Constable and SCR.A/136/2007 18/42 JUDGMENT Police Constables respectively in the Surveillance Squad at “B” Division Police Station, Rajkot and were required to go for checking, prohibition and bootlegging etc., and after making necessary entry in the Station Diary No.14 on 4.5.2004, and when they were on round, they received an intelligence/information that a history-sheeter prohibition bootlegger namely Salim (deceased) was actively indulging in bootlegging activities and was selling country made liquor, and on the basis of the said information, a team headed by petitioner No.1 visited the said place. It is the case on behalf of the petitioners – original accused that, on seeing the squad personnel, deceased Salim who was in intoxication state, took out knife from the waist region and tried to give blow on chest of the petitioner No.1-original accused No.1 and the petitioner No.1 – original accused No.1 tried to protect the same with his right hand, and in an attempt he received injuries on the right hand fingures. It is also the case on behalf of the petitioner No.1-original accused No.1 that thereafter when he show his life in great danger, SCR.A/136/2007 19/42 JUDGMENT he immediately took his service revolver and fired one shot in his self defence. Therefore, it is the contention on behalf of the petitioners-original accused that the petitioners – original accused were on duty and whatever was done by the petitioners were during the course of performance of their official duty and, therefore, sanction under Section 197(1) of the Code is necessary for the prosecution and before taking cognizance by the learned Magistrate. 10. On the other hand, it is the case on behalf of the respondents that the petitioner No.1-original accused No.1 had shot fired arm from his revolver point blank on the chest of the deceased and the heart was punctured and it was a deliberate act on the part of the accused to kill the deceased and, therefore, the said act has no nexus, reasonable connection or relevance to the officers act/duty of the petitioners, and is otherwise illegal, unlawful or in the nature of offence and, therefore, sanction under Section 197(1) of the Code is not required. SCR.A/136/2007 20/42 JUDGMENT 11. As stated above, learned advocate appearing on behalf of the petitioners-original accused has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Shankaran Moitra (supra) and the learned advocates appearing on behalf of the respondents have relied upon the decision of the Hon'ble Supreme Court in the case of Ganeshchandra (supra) and the decision of the learned Single Judge of this Court in the case of S.S.Khandwawala (IPS), Additional Director General of Police and Others Vs. State of Gujarat and Another reported in (2003) 1 GLR 802 and unreported judgment of the very learned Single Judge in the case of G.V.Chaudhari and others vs. State of Gujarat and another rendered in Criminal Misc. Application No.3850 of 1993 dated 5.3.2007 particularly para 6.1 which reads as under: “6.1 Relying upon recent judgment of the Supreme Court in Sankaran Moitra v. Sadhna Das [2006 (3) GLR 2304], it was submitted that the Supreme Court had, in similar circumstances, quashed complaint only on the ground of want SCR.A/136/2007 21/42 JUDGMENT of sanction under section 197 (1) of the Code on the basis that a prosecution hit by that provision cannot be launched without the sanction. It was noticed that, in that case, some facts were disclosed in the counter- affidavit filed on behalf of the State which showed that there was, at the polling booth, some disturbance which had taken a violent turn and clashes between supporters of two political parties were very imminent when the officers concerned reached the site of the incident in an official vehicle. The version of the public officers was supported by the witnesses examined by the Chief Judicial Magistrate while taking cognizance of the offence. It, on the basis of such material, emerged that the alleged act was done while the officers were performing their duty. The Supreme Court heavily relied, in following words, upon the fact that investigation into the two cases registered for the offences punishable under sections 148, 149 and 336 of the IPC read with sections 3 and 5 of the SCR.A/136/2007 22/42 JUDGMENT Explosive Substances Act was not completed: "8. ....What is relevant for our purpose is to notice that investigations into the two crimes registered, namely, Case No.111 under sections 148, 149, 336 IPC read with sections 3 and 5 of the Explosive Substances Act and Case No.112 registered on the complaint made by the complainant herein on 11.5.2001, have not been completed." In the above facts, when the learned counsel for the original complainant submitted that the whole investigation and the whole process was being delayed in view of the fact that the accused involved were police personnel and the State was interested in protecting them than in having justice done, the Supreme Court observed: "11. ....When we take note of this submission, 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." Ultimately, the Supreme Court held as under: SCR.A/136/2007 23/42 JUDGMENT "25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in performance of duty. If it was done in performance of duty