SAKUNTALA Vs. STATE OF U P

JUDGEMENT

(1.) R. K. Dash, J. Kripa Shankar Shukla (hereinafter referred to as 'the deceased'), husband of the petitioner was done to death on 26-10-1995 night. It is alleged that there was bad blood between the deceased and Swami Nath Yadav and others. On the date of incident Swami Nath Yadav and others committed murder of the deceased and threw his dead body inside a well in order to screen the offence. The case of the petitioner is that at the relevant time respondent No. 2 was the Sub-Inspector of Police of Bansdeeh P. S. He alongwith respondent No. 3, the autopsy doctor connived with each other in order to screen the offenders created documents to show that the death of the deceased was accidental. Complaining against both police officer and the doctor, petitioner made a representation to the President of India as well as the State Government to get the matter investigated by CBCID. Thereupon considering his prayer the State Government entrusted the case for investigation to CBCID. Pursuant thereto, the case was investigated and on completion thereof, charge-sheet was laid against five persons. The investigating officer also found prima facie case against respondent Nos. 2 and 3 that they misused their official power in order to screen the offenders and created forged documents. Accordingly, he moved the Government to accord sanction for filing charge-sheet against them to stand their trial. Principal Secretary, Home Department of the State of U. P. in the counter-affidavit has stated that respondent No. 3, the autopsy doctor being a Central Government employee sanction has been accorded by the Government of India, Ministry of Health and Family Welfare to prosecute him. So far respondent No. 2, the investigating officer is concerned, the State Government while refusing to sanction directed for initiating disciplinary proceeding against him. Respondent No. 2 has also filed counter-affidavit contending inter alia he performed duties as a public servant as enjoined upon him by law and maintained impartiality. He never misused his official position to help the accused persons. His opinion that the deceased died on accidental death by falling in a well was based on the materials collected during investigation. In such background fact, there being nexus between the act complained of and official duty, no charge-sheet could have been filed against him without sanction of the State Government and no fault can be found with the State Government refusing to accord sanction.

(2.) ONE Anil Prakash Mishra, an officer of the CBCID has filed an affidavit in support of what was found in course of investigation resulting filing of report in the nature of charge-sheet against respondent No. 2 as well as the autopsy doctor, respondent No. 3. From narration of the fact as aforesaid, it transpires that both investigating officer and the doctor respondents No. 2 and 3 alleged to have fabricated the records intending to save the persons who committed murder of the deceased. Thus the moot question for consideration is whether the alleged act was committed by respondents No. 2 and 3 in discharge of their official duty and therefore, without prior sanction of the appropriate Government, they can be prosecuted. As provided in Section 197 Cr. P. C. no Court can take cognizance of any offence committed by a public servant while acting or purporting to act in discharge of his official duty whether such public servant is removable from service by the appropriate Government. Almost a similar case like the present one came for consideration before the Supreme Court in the case of Raj Kishor Roy v. Kamleshwar Pandey and another, (2002) 6 SCC 54. In short the fact of that case was that the first respondent being a police officer had brought an illegal weapon and cartridges and falsely shown them to have been recovered from him and his brother. Learned Judicial Magistrate having found prima facie case issued summons against him. The police officer filed Criminal Misc. Application in the High Court for quashing the order of the Magistrate inter alia on the ground that sanction under Section 197 Cr. P. C. had not been obtained. The High Court held that even if the facts narrated in the complaint are taken to be true, the case would fall within the purview of Section 197 Cr. P. C. and without sanction of the appropriate authority the police officer could not be prosecuted. The matter was then carried to the Supreme Court. Upon hearing their Lordships upset the order of the High Court and directed the Judicial Magistrate to proceed with the case in accordance with law. The relevant observation of the Court in paragraph 11 of the judgment is extracted hereunder: ". . . . . . . . . . . The question whether these acts were committed and/or whether the 1st respondent acted in discharge of his 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 whether the 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".