WP(C) 3617/2007 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE HRISHIKESH ROY Ranjan Gogoi, J This Taken-up Writ Petition has been registered on the basis of a letter dated 4.7.2007 written by one Sri Lakhiram Tudu to the Hon’ble Chief Ju stice of this Court. In the said letter, Sri Tudu had requested the Hon’ble Chie f Justice to cause an enquiry to be made as to why Sessions Case No.62/98 under Section 302 IPC involving the death of his father, one Bircha Tudu, had remained pending and whether sanction for prosecution of the respondent Imdad Ali Bora, S.I of Police is required in the said case. 2. The brief facts of the case may now be noticed for a better appr eciation of the issues that have emerged in the present proceeding. The person who had addressed the letter dated 4.7.2007 to the Ho n’ble Chief Justice i.e. Lakhiram Tudu had filed a complaint in the Court of Jud icial Magistrate, Golaghat on 28.10.97, inter alia, alleging that on 30.9.97 hi s father Late Bircha Tudu was taken into police custody by the Golaghat Police i n connection with Sarupathar P.S. Case No. 82/97 . The respondent, Imdad Ali Bor a, S.I. of Police, was the Investigating Officer of the said case. In the compla int petition, it was stated that after being taken into custody Bircha Tudu was severely assaulted by the police personnel including Imdad Ali Bora, as a resul t of which, he had to be removed to hospital where he had died in the evening/ l ate night of the same day. 3. The learned Magistrate before whom the complaint was filed recor ded the statements of five witnesses under Section 202 of the Cr.P.C. and, there after, took cognizance of the offence under Section 304 IPC. This was by order d ated 17.1.98. The respondent Imdad Ali Bora who was the accused in the aforesaid case filed an application before the learned Magistrate contending that the cas e ought not to be proceeded with without sanction for prosecution of the accused Imdad Ali Bora being granted by the competent authority under Section 197(2) of the Cr.P.C. What had happened thereafter is not very clear, save and except, th at by order dated 5.8.98 the learned Magistrate committed the case for trial to the Court of Sessions at Golaghat and the accused appeared before the learned Ma gistrate on 3.9.98. Thereafter, by order dated 17.11.98, the learned Sessions Ju dge, Golaghat recorded his opinion that the prosecution of the accused Imdad Al i Bora required grant of sanction under Section 197 Cr.P.C. and, therefore, the matter was referred to the Home Department, Govt. of Assam for grant of sanctio n. 4. Aggrieved by the aforesaid direction, Imdad Ali Bora preferred C rl. Revision No. 180/2000 before this Court which was disposed of by this Court on 10.5.2006 after recording the finding that the direction to grant sanction co ntained in the order dated 17.11.98 of the learned District Judge was untenable in law. Accordingly, the said order was set aside. 5. It is thereafter that the complainant Lakhiram Tudu in his lette r dated 4.7.2007 to the Hon’ble Chief Justice had raised the question that in th e present case no prosecution sanction would be required to proceed with the tri al of Sessions Case No. 62/98 against accused Imdad Ali Bora. In the aforesaid letter, there is a further mention that in a proceeding registered as C.R. No. 3 934/98 (disposed of on 10.8.06) it has already been observed by this Court in pa ra 15 of the judgment that from careful examination of the enquiry report submi tted by the District Judge, Golaghat, we would, therefore, be justified in deduc ing the fact situation that late Birsa Tudu died in police custody due to tortur e caused by the police personnel. . The aforesaid writ petition i.e. CR No. 3934 /98 was instituted by the wife of the deceased, Bircha Tudu, claiming compensati on for the death of her husband in police custody. 6. In the aforesaid facts, the matter being referred to the Bench o n the judicial side by the Hon’ble Chief Justice, this Court had thought it prop er to take cognizance of the grievance raised by Lakhiram Tudu and issued notice to the concerned parties. In response to the notices issued by the Court, affid avits came to be filed by the concerned authorities of the State indicating that a decision has already been taken not to grant sanction for the prosecution of Imdad Ali Bora, S.I. of Police. The said fact was informed to the learned Govt. Advocate by a letter dated 15.9.2009 of the Deputy Secretary to the Govt. of As sam, Home (A) Department. 7. As sanction for prosecution of the respondent Imdad Ali Bora, h ad already been refused by the State Government, as communicated to the Govt. A dvocate by letter dated 15.9.2009, this Court desired to peruse the file in ori ginal wherein the said decision had been taken. At the same time, the Court also issued notice to Imdad Ali Bora, pursuant whereto, he has appeared and is repre sented by his counsel, Sri S. Bharali. 8. After perusing the file containing the decision not to accord sa nction for prosecution of Imdad Ali Bora, the Court by order dated 7.1.2010 dire cted the competent authority in the State to re-examine the mater and take a fre sh/ de novo decision as to whether sanction for prosecution of Imdad Ali Bora s hould be granted or not. The aforesaid direction was issued by the Court in view of the conclusion recorded in para 15 of the judgment dated 10.8.2006 passed in C.R. 3934/98, which did not appear to have been taken into consideration at the time when the decision not to grant prosecution sanction was taken. 9. Pursuant to the order dated 7.1.2010, the Principal Secretary to the Govt. of Assam, Home Department has passed an order dated 4.3.2010 which ha s been placed before us by Mr PS Deka, learned Govt. Advocate, Assam. We have p erused the said order dated 4.3.2010. 10. The order dated 4.3.2010 of the Principal Secretary, Home Depart ment contains an elaborate recital of all the relevant facts and circumstances s urrounding the incident and also what had happened thereafter. In the aforesaid order, the Principal Secretary on a detailed consideration of the materials on r ecord, has come to the conclusion that deceased Bircha Tudu himself was an accus ed in a murder case and the facts on record indicated that in connection with th e said case i.e. Sarupathar P.S. Case No. 82/97 he was apprehended by the local villagers and was assaulted. The Principal Secretary, Home Department has consid ered the report of the District & Sessions Judge, Golaghat on the basis of which the judgment and order dated 10.8.2006 in CR No. 3934/98 was passed as well as the opinion tendered by the Medical & Health Officer-I, KK Civil Hospital, Gola ghat. On such consideration, the Principal Secretary has come to the conclusion that the possibility that the deceased had died due to his existing heart condit ion cannot be ruled out. In this regard, it appears from the materials on record that the deceased was suffering from hypertension and the post mortem report al so indicates that he had an enlarged heart. The Principal Secretary has also tak en into account the external injuries that were found on the deceased at the tim e of his post mortem examination which appeared to be minor in nature. On consid eration of all such facts, it has been recorded in the order dated 4.3.2010 of t he Principal Secretary to the Govt. of Assam, Home Department that on re-consid eration of the matter, the earlier view that sanction for prosecution should not be accorded is to be reiterated. 11. The power of the Court in examining orders granting or refusing sanction for prosecution is an extremely circumscribed power, inasmuch as, under the provisions of the Code of Criminal Procedure the power to grant or refuse p rosecution sanction is vested in the administrative authority. Courts are not to judge the necessity for grant of sanction for prosecution or the sufficiency of the materials on the basis of which such a decision is taken. The task of the C ourt in such matters would be to examine the order, as may have been passed by t he authority, from the standpoint of malafides or whether the order passed refle cts a possible view having regard to the materials on record. If the view taken by the authority is a possible view, it is not for the Court to sit in judgment over such a view and substitute its opinion in place of the opinion recorded by the authority. 12. If the order dated 4.3.2010 is to be viewed from the aforesaid p erspective there can be no manner of doubt that the view taken by the Principal Secretary, Home Department is a possible view. The Principal Secretary has not o nly considered the relevant materials but has also recorded that the physical in juries that were found on the body of the deceased were too insignificant to cau se death and in view of the medical opinion that the deceased had a poor heart c ondition, the possibility of he having died from cardio-pulmonary failure conse quent upon myocardial infraction cannot be ruled out. We have no doubt in our m inds that the conclusions recorded by the Principal Secretary, Home Department a re possible conclusions which can be reasonably reached on due consideration of the relevant facts and circumstances of the case. If that be so, we will find no reason to cause any interference with the order dated 4.3.2010 passed by the Pr incipal Secretary to the Govt. of Assam, Home Department. 13. In view of the aforesaid conclusion reached, we deem it proper t o close this taken-up matter. 14. Office to communicate a copy of this order to the complainant/ a pplicant Lakhiram Tudu at the address furnished by him.