REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1491 OF 2012

[Arising out of Special Leave Petition (Crl.) No.4002 of 2006]

OM PRAKASH & ORS. … Appellants

Versus

STATE OF JHARKHAND
Through the Secretary,
Departmentof Home,
Ranchi-1 & Anr. … Respondents

WITH

CRIMINAL APPEAL NO. 1492 OF 2012

[Arising out of Special Leave Petition (Crl.) No.1946 of 2007]

KAILASHPATI SINGH … Appellant

Versus

RAJIV RANJAN SINGH

& ANR. … Respondents

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JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. In both these appeals, by special leave, judgment and

order dated 1/5/2006 delivered by the Jharkhand High Court

in Criminal Misc. Petition No.822 of 2005 and Criminal Misc.

Petition No.640 of 2005 filed under Section 482 of the

Criminal Procedure Code (for short, “the Code”) is challenged.

Criminal Misc. Petition No.640 of 2005 was filed by Shri Rajiv

Ranjan Singh, Deputy Superintendent of Police, (Dy.S.P.)

Headquarter(II), Jamshedpur. Criminal Misc. Petition No.822

of 2005 was filed by the police personnel posted at

Jamshedpur in different capacities. In the petitions, before

the High Court, the prayer was for quashing the criminal

proceedings in Complaint Case No.731 of 2004 and order

dated 14/06/2005, passed thereon by the Judicial Magistrate

First Class, Jamshedpur, taking cognizance of the offences

alleged in the complaint.

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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 contacted the Jamshedpur Police

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Authorities for the purpose of receiving the dead body of his

son for cremation. However, the police refused to handover

the dead body. Therefore, the complainant’s eldest son

Krishna Singh reported the matter to the Deputy

Commissioner, East Singhbhum, Jamshedpur. However, the

police did not hand over the dead body of the deceased in spite

of repeated requests made to the proper authorities. It is the

complainant’s case that he later on came to know that the

police had obtained signature of one Sanjay Kumar under

coercion on a challan, showing that the dead body was

received by him. Instead of handing over the dead body to

Sanjay Kumar, according to the complainant, it was cremated

at Parvati Ghat, Adityapur. The complainant and members of

his family were kept in dark. This was done to destroy the

evidence and manufacture the story of police encounter. It is

the case of the complainant that deceased Munna Singh was

not involved in any criminal activities. He used to provide his

jeep to people on rent at Jamshedpur and other places and

earn his livelihood. According to the complainant, deceased

Munna Singh was falsely involved in Sonari P.S. Case No.15 of

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1994 dated 6/3/1994 under Section 392 of the Indian Penal

Code (for short, “the IPC”). As a matter of fact, on that day,

he was only 9 years old. The complainant stated that the

postmortem report shows that three bullets were found in the

chest of deceased Munna Singh indicating that he was killed

by the police by firing from close range. The complainant took

exception to the fact that the autopsy was not video-graphed.

The complainant also contended that the accused committed

the offence not in discharge of their official duties, therefore,

no sanction was required to prosecute them under Section

197 of the Code. According to the complainant, the accused

have thus committed offence under Sections 120-B, 203 and

302 read with Section 34 of the IPC.

4. The other version which also needs to be stated is

disclosed from the FIR lodged on 1/7/2004 by one Jeevan

Prasad Naredi, a dealer in scrap that on 1/7/2004 at 9.50

p.m. some miscreants came to his house riding on motor

cycles. They were armed with firearms. They fired at his office

situated in his house and ran away. This was done to

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threaten him and to force him to yield to their ransom

demand. It is the case of the police personnel 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

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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, appellants Om Prakash & Ors. have

come to this court. Being aggrieved by the impugned

judgment and order of the High Court, to the extent it quashed

the proceedings against Rajiv Ranjan Singh, Dy.S.P.-II, the

complainant has come to this court. As both the appeals

challenge the same judgment and order and they arise out of

the same facts, we dispose them of by this common judgment.

7. We have heard Mr. K.V. Viswanathan, senior advocate for

appellants Om Prakash & Ors., Mr. Colin Gonsalves, senior

advocate for complainant Kailashpati Singh and Mr. Mukul

Rohtagi, senior advocate for the respondent-State and Dy.S.P.

Rajiv Ranjan Singh.

8. Before we deal with the rival contentions, it is necessary

to state one admitted fact which leads us to conclude that the

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reason given by the High Court for not quashing proceedings

against appellants Om Prakash & Ors. namely that no

notification under Section 197(3) of the Code was produced by

them protecting them from prosecution in respect of any

offence alleged to have been committed while acting or

purporting to act in discharge of their official duties, is

incorrect. We have been shown a copy of the Notification

dated 16/5/1980 issued by the State of Bihar which extends

the protection of sub-section (2) of Section 197 of the Code to

all the members of the police force as it includes both officers

and men. Mr. Gonsalves, learned senior counsel for the

complainant has not disputed this position. It is, therefore,

not necessary to dilate further on this issue.

9. It would be appropriate to begin with the submissions of

Mr. Gonsalves, learned senior counsel appearing for the

complainant, because the complainant’s case is that his son

was killed in a fake encounter. Counsel submitted that the

postmortem notes disclose that deceased Munna Singh had

received injuries on chest. This is indicative of firing from

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close range. The nails of deceased Munna Singh were

blackened, which militates against the theory of genuine

encounter. Counsel submitted that it was necessary for the

police to videograph the postmortem as per the Guidelines

issued by the National Human Rights Commission (“NHRC”).

Counsel further submitted that the body of deceased Munna

Singh was not handed over to his brother-in-law as alleged.

His signature was taken under duress on a receipt created to

show that the body was handed over. Deceased Munna Singh

was cremated 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

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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 police have made desperate

efforts to cover up the cold blooded murders committed by

them. They are trying to concoct a case of a genuine

encounter.

10. As regards requirement of sanction, counsel submitted

that there is intrinsic evidence to show that the police are

guilty of cold blooded murders. By no stretch of imagination,

it can be said that when deceased Munna Singh was shot

dead, the police were discharging their public duty. Therefore,

there is no question of obtaining sanction to prosecute the

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police personnel involved in this case. Counsel submitted that

when the question of sanction is raised, it must be studied

with reference to the complaint and not with reference to the

documents produced by the accused to set up a plea of self

defence. Counsel submitted that the plea of self defence can

only be raised in the trial court. Counsel submitted that

whether there is false encounter or not, must be considered

only on the basis of the complaint and testimonies recorded

before the charge is framed. No material produced by the

accused should be taken into account when there is

unimpeachable evidence to show that the police are guilty of

false encounter. In such case, sanction is not required. In

support of his submissions, counsel relied on the judgment of

the Federal Court in Dr. Hori Ram Singh v. Empower1

judgments of this court in Matajog Dobey v. H.C. Bhari,2

Pukhraj v. State of Rajasthan & Anr.,3 Nagraj v. State

of Mysore4, Raj Kishor Roy v. Kamleshwar Pandey & Anr,5

1
AIR 1939 FC 43
2
(1955) 2 SCR 925
3
1974 (1) SCR 559
4
AIR 1964 SC 269
5
(2002) 6 SCC 543

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K. Satwant Singh v. The State of Punjab6 and State of

Orissa through Kumar Raghvendra Singh & Ors. v.

Ganesh Chandra Jew7. Counsel also relied on Zandu

Pharmaceutical Works Ltd. & Ors. v. Mohd. Sharaful

Haque & Anr.8 on the question of nature of powers of the

High Court under Section 482 of the Code.

11. On the other hand, Mr. Vishwanathan, learned senior

counsel appearing for the appellants Om Prakash and Ors.

and Mr. Mukul Rohtagi, learned senior counsel appearing for

the State of Jharkhand and Dy.S.P. Rajiv Ranjan Singh placed

heavy reliance on Sankaran Moitra v. Sadhna Das &

Anr.9 and submitted that sanction is a condition precedent for

successful prosecution of a public servant when the provision

is attracted. It was submitted that 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
6
1960 (2) SCR 89
7
(2004) 8 SCC 40
8
(2005) 1 SCC 122
9
(2006) 4 SCC 584

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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 outer wall of the said room and the wall of

the gate of his house. He directed the members of his family

to remain inside the house. On hearing the gun shots, his

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neighbour shouted. He mustered courage and went outside

the house after opening the main gate. His neighbour told

him that 2 to 3 motor cyclists had come there. They came

from Regent Hotel road side towards his house and suddenly

started firing at the wall of the room used by him as office. He

found marks of firing at two places on the outer wall of the

said room and also on the front side main wall of the gate of

his house. He found empty cartridges and one bullet lying at

the place of incident. He further stated that the dreaded

criminal Babloo Prasad had given him threat. He had

demanded ransom from him. Out of fear, he had changed his

telephone number. Therefore, Babloo Prasad could not

contact him and, out of frustration, he along with his

associates had attacked his house so that ransom amount

could be recovered from him.

13. It is also necessary to refer to the FIR filed by Dy.S.P.

Rajiv Ranjan Singh dated 2/7/2004 at 0015 hrs. As per this

FIR, on 2/7/2004, he received information at 2125 hours that

within Bistupur Police Station, some firing incident had

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occurred. He along with the task force officers left in a Sumo

Car to verify the said information. On verification, he came to

know that some criminals riding motor cycles came to the

house of one Jeevan Naredi, a businessman dealing in scrap,

fired bullets at his house and moved towards Rani Kudar,

which comes within the jurisdiction of Kadma Police Station.

He along with his police team left the Headquarters to trace

the criminals. At that time, he received information that some

boys riding motor cycles in a great speed had gone towards

Matin Drive. He immediately informed SHO, Sonari D.K.

Srivastava about the incident and asked him to start a search

for the accused, who had gone towards Matin Drive. He also

reached Sonari, Jhunjani. In the light of the Sumo Car, he

saw five to six boys standing on the Pucci road with motor

cycles. He stopped his car and ordered constable Bharat

Shukla and constable Shyam Bihari Singh (the appellants

before us) to ask the boys, as to who they were and why they

were standing there. On being so questioned, one of the boys

asked a counter question to them as to who they were. The

constables replied that they were from the police force. As

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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

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Superintendent, Superintendent of Police, etc. came there.

Articles lying at the seen of offence were seized. They included

firearms of foreign make. The complaint of Dy.S.P. Rajiv

Ranjan Singh further stated that it appeared that all these

criminals had gathered at Dumjani after firing at the house of

Jeevan Naredi for ransom and were planning further action.

During that period, police party reached there. The criminals

armed with illegal weapons started firing at the police to kill

them. The police in order to defend themselves and to effect

legal arrest of the criminals fired in retaliation. During this

encounter, four criminals died and two unknown criminals

ran towards Nirmal Basti.

15. Some of the articles seized by the police are described in

the seizure memo as under:

“Details of seized items:

i) 9 mm empty cartridge lying around the Chabutara

– 6 nos.

ii) Bullet Pillet – lying nearby Chabutara along the

Sartua tree – 2 nos.

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iii) Black color Hero Honda Motorcycle (without

number plate) Engine no.01B 18M20712
Chassis no.01B20C21175 lying in the west
side of the Board of Nirmal Mahto Udyan.

iv) A iron made pistol lying along the wheel of

motorcycle – ‘Made in Western Germany Auto
Pistol 57914’ marked on the Barrel and ‘Made
in Western Germany and Auto Pistol 9 Round
CAL 765A 57914’ marked on body. Length of
the barrel is about 9 fingers and But – 6 finger
having magazine fitted at the bottom. On
opening, one empty cartridge entangled in its
chamber and 4 live cartridges of 7.65 bore
loaded in the Magazine.

v) xxx xxx xxx

vi) Near the right hand of deceased Rajeev Dubey, a

one barrel country-made .315 bore pistol
measuring 8 fingers in length, 5 fingers in body
having wooden handle. On opening, ‘KF 8mm’
mark was found in the barrel. One cartridge
entangled in pistol. One live cartridge 8 mm in
the right pocket of trouser of Rajeev Dubey and
one used cartridge lying near the dead body
and two used cartridges 7.65 bore near the
head of the dead body.

vii) xxx xxx xxx

viii) Western-North from here – Without number

plate Hero Honda Splendor bearing Engine
no.97K17E05846 Chessis no.97K19F5777 with
broken brake light.

ix) xxx xxx xxx

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x) From the pocket of Munna Singh, Samsung Mobile

phone in running condition. EMEI no. of the
mobile set – 35236200608952/6-19 in which
SIM no.9835413435 was installed. In addition,
three SIM cards wrapped in a piece of paper
kept in the plastic cover of mobile 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 – without number plate Hero Honda
Splendor bearing Engine no.18E00877 Chessis
no.01E20F50766

xiv) On the side of right hand of dead body of

deceased Babloo Prasad, one iron made pistol
(mauser) with inscription of ‘State Property of
the Italy Government CAL 765 A57391’ on the
body. On the left side of the barrel, CAL 9 mm A
57391’ and on the right side of body, ‘Auto
Pistol 9 round only for public supply’ written on

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it. Size measurement – 9 finger But with 6

finger magazine and one live cartridge lying
along the dead body and 5 used cartridges of
7.65 bore spread all along.

xv) xxx xxx xxx

xvi) xxx xxx xxx
xvii) xxx xxx xxx
xviii) xxx xxx xxx

xix) In the South – 9 mm used cartridges – total 14

nos. spread all along.

xx) One bullet from Sumo.”

16. This seizure memo, in our opinion, indicates that the

criminals had used motor cycles and they were armed with

deadly fire arms. Three of the motor cycles were found at the

scene of offence. The fire arms used by the criminals were of

foreign make. There is no reason to doubt the veracity of this

seizure memo because it is difficult for the police to concoct

such a scene and plant such weapons.

17. From the two FIRs, it is clear that the criminals riding on

the motor cycles armed with deadly firearms had attacked the

house of businessman Naredi. Naredi lodged a complaint at

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Vistupur Police Station. Upon receiving information, the

police machinery had swung into action. Dy.S.P. Rajiv Ranjan

Singh left his office along with his team to trace the criminals.

They could trace the criminals. They asked the criminals to

surrender. The criminals instead of surrendering fired at

them. The police had 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

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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 from the house of Jeevan

Naredi and how after receiving information about the firing

incident, Dy.S.P. Rajiv Ranjan Singh and his police party

chased them. He has also stated that in the encounter, four

criminals died and two managed to escape. He has described

the weapons and other articles which were seized from the

place of occurrence. He has stated that all the criminals were

members of the dreaded criminal Akhilesh Singh’s gang. He

has further stated that after the incident, senior police officers

reached the place of occurrence and the then S.P., East

Singhbhum Mr. Arun Oraon, I.P.S. supervised the case. The

inquest was done by the Magistrate and FIR was registered on

the basis of self assessment of Dy.SP (Hq.), which was

registered as Sonari P.S. Case No.53 of 2004 dated 2/7/2004

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u/s. 307/427/353/34 IPC read with Section 25(1b)

(A)/26/27/35 of the Arms Act corresponding to G.R. Case

No.1065 of 2004. He has confirmed that on the written

request made by the complainant’s son-in-law Mr. Sanjay

Narayan Singh, dead body of deceased Munna Singh was

handed over to him after the postmortem examination was

done and it was finally cremated at Parvati Ghat. Relevant

documents are annexed to the affidavit. He has laid stress on

the fact that the complainant filed his complaint 23 days after

the incident. He has added that the case was supervised by

the then S.P. Mr. Arun Oraon and after due investigation,

charge sheet has been submitted against the deceased

criminals showing them as dead accused.

19. After setting out the activities of Akhilesh Singh Gang,

Dy.S.P. Kujur has given a chart indicating the cases registered

against the deceased criminals. It reads thus:

“Accused Munna Singh (since deceased).

a. Sakchi P.S. Case No.208/02 u/s. 307/34 I.P.C. &

27 Arms Act later on converted to u/s. I.P.C.

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b. Sakchi P.S. Case No.144/03 u/s.

324/307/367/34 I.P.C. and section 27 Arms
Act.
c. Telco P.S. Case No.85/04 under section 392 of the
Indian Penal Code.
d. Telco P.S. Case No.109/04 u/s. 379 I.P.C. and
section 392 I.P.C.
e. Adityapur P.S. Case No.139/04 u/s. 392/411
I.P.C.

Accused Bablu Prasad alias Suman Kumar (since

deceased).

a. Sitaramdera P.S. Case No.62/01 u/s. 379 I.P.C.

b. Bistupur P.S. Case No.244/01 u/s. 379 I.P.C.
c. Bistupur P.S. Case No.248/01 u/s. 379 I.P.C.
d. Sonari P.S. Case No.71/01 u/s.379 I.P.C.
e. Sakchi P.S. Case No.179/01 u/s. 379 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.

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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 Commissioner, East Singhbhoom, Jamshedpur and

the report of the Deputy Commissioner was sent to the Deputy

Secretary, Home Department vide letter dated 31/10/2006. A

copy of the said letter is annexed to the affidavit at Annexure-

R4 (Colly.). We have carefully perused Annexure-R4 (Colly.)

which includes the report submitted by the Dy.S.P., East

Singhbhoom, Jamshedpur. In his report, Dy.S.P.,

Jamshedpur has, after giving details of the steps taken while

conducting the inquiry, set out the antecedents of the

deceased criminals. So far as the allegation that deceased

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Munna Singh had received bullet injuries on his chest is

concerned, it is stated that as per the postmortem report,

deceased Munna Singh had received only three injuries during

the encounter – one at the forearm, second at the wrist and

third on the stomach. After examining all the circumstances,

in their proper perspective, the report concludes thus:

“It is clear from the records and investigation of other

related points that firing was done by the criminals
in the house of businessman Jiwan Naredi of
Bishtupur for extortion and after the incident, the
police team under the supervision of Shri Rajiv
Ranjan Singh, Dy.SP (Hqrs) chased the criminals
while performing their legitimate duty.
Consequently, the encounter took place and Munna
Singh, (son of the applicant) and three other dreaded
criminals of the city, associated with Akhilesh Singh
gang, were killed.

Therefore, the allegations made by the applicant are

baseless and false. The original application along
with inspection report is being sent for favour of
information.”

21. It appears that the complainant had made a complaint to

the NHRC. Admittedly, on receipt of this complaint, NHRC

directed CID to conduct an inquiry. Accordingly, Nagendra

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Choudhary, SP, CID, Jharkhand (Ranchi) conducted the

inquiry and submitted his report to the Deputy Inspector

General of Police, CID, Jharkhand, Ranchi. The report is

exhaustive and we have carefully perused it. From the report,

it appears that the Inquiry Officer recorded the statement of

Krishan Pratap Singh the brother of deceased Munna Singh.

He also recorded the statements of two independent witnesses

namely Moni Borker and Vijay Singh. These witnesses have

confirmed that the firing incident did take place. The Inquiry

Officer also recorded the statements of witnesses to the seizure

memo. The report further 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

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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 occurrence. Statement of Jeevan

Naredi, the businessman whose house was attacked by the

criminals is also recorded. Jeevan Naredi has given detailed

account as to how the criminals fired at his house and fled

away from there. After considering inquest report,

postmortem report, forensic laboratory report, the statements

of independent witnesses, the statement of the businessman

whose house was attacked, the statement of the brother of the

deceased and the antecedents of the deceased and other

attendant circumstances, the report concludes that the

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encounter was genuine. There is no dispute about the fact

that NHRC has accepted this report and has also come to a

conclusion that this is not a case of fake encounter.

22. We shall now deal with Mr. Gonsalves’ attack on the

police. Mr. Gonsalves contended that the dead body was not

handed over to the complainant’s family. We have already

referred to the affidavit in reply filed by Mr. S.K. Kujur, Dy.S.P.

From his affidavit and the documents annexed to it, it is clear

that on the written request of the complainant’s son-in-law

Sanjay Narayan Singh on 2/7/2004, the dead body of

deceased Munna Singh was handed over to him in the

presence of Ripunjay Kumar Singh and Asha Shankar Singh.

The body was finally cremated at Parvati Ghat by members of

the family of deceased Munna Singh. Our attention is drawn

to the copy of the application made by the brother-in-law of

deceased Munna Singh requesting that the dead body may be

handed over to him for cremation. It is counter signed by the

brothers of deceased Munna Singh. The dead body was

handed over to Sanjay Narayan Singh, the brother-in-law of

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deceased Munna Singh and a receipt dated 02/07/2004 to

that effect was given by him to the police. The copy of the

receipt is seen by us. It is counter signed by Asha Shankar

Singh, brother of deceased Munna Singh. There is on the

record a declaration made by the relative of deceased Munna

Singh - one Raja Narayan Singh that deceased Munna Singh

was cremated at Parvati Ghat, Bistupur, Jamshedpur. The

declaration is made on the certificate issued by Parvati Ghat

authorities.

23. Mr. Gonsalves contended that deceased Munna Singh’s

name was shown in a case registered in 1994 when he was

only 9 years old. This shows that the police have fabricated a

case to show that he was a dreaded criminal. We notice that

in the postmortem notes, his 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

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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 received bleeding injuries. The PUCL visited the

scene of occurrence after four days in rainy season. Therefore,

assuming blood stains were not found at the scene of

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occurrence after four days, that does not disprove the

occurrence.

25. It is then contended that police movements are not

recorded in police diaries. This is not correct. Extracts of

police station diary of P.S. Sonari show the police movements

of the relevant period. These extracts are annexed to the

affidavit of Dy. S.P. Kujur.

26. It was submitted that the deceased received injuries on

chest. The doctors’ statements have been reproduced in the

CID report. It is stated by the doctors that there was no

blackening or charring suggesting that the deceased were shot

at from a close range. The postmortem report also does not

show that deceased Munna Singh had received chest injuries.

It is true that the police personnel did not receive any bullet

injuries. However, the Sumo vehicle was hit by a bullet.

Mercifully, the police did not receive injuries because they had

taken safe positions. From this, it cannot be said that no such

incident had taken place. It is submitted that there are no

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independent eye witnesses supporting the version of police.

This is wrong. Statements of Moni Boker and Vijay Singh

have been recorded under Section 164 of the Code. This is

evident from the CID report.

27. It is submitted that all challans in respect of deceased

Munna Singh were filed on the same day. There is a

reasonable explanation given for this. The deceased was

wanted in the cases of 2002 and 2003. He was absconding

when he died. A report was required to be filed to inform the

court that he was dead. It is the case of the police that in

these circumstances three challans were prepared and filed on

the same day. These are not challans but final forms. In the

circumstances, we are unable to come to a conclusion that

this was done purposely with mala fide intention to create

record against the deceased.

28. Mr. Gonsalves contended that nails of the deceased were

blackened. This is not borne out by the postmortem report or

the inquest conducted by the Magistrate. It is true that the

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postmortem was not videographed. In this case, the

Magistrate conducted the inquest. The CID has fully

investigated and submitted its report stating that it was a

genuine encounter. NHRC is also satisfied with the

postmortem. Therefore, 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

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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 is a reasonable

connection between the act and the performance of

the official duty, the excess will not be a sufficient

ground to deprive the public servant of the protection.

(Ganesh Chandra Jew). If the above tests are applied to the

facts of the present case, the police must get protection given

under Section 197 of the Code because the acts complained of

are so integrally connected with or attached to their office

as to be inseparable from it. It is not possible for us

to come to a conclusion that the protection granted

under Section 197 of the Code is used by the police

personnel in this case as a cloak for killing the deceased in

cold blood.

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30. We must now deal with the submission of Mr. Gonsalves

that the question of sanction must be studied with reference

to the complaint and not with reference to the documents

produced by the accused to set up a plea of self defence. In

support of this submission, Mr. Gonsalves heavily relied on

Hori Ram Singh. In that case, the Federal Court was

considering the expression “Act done or purporting to be done

in execution of duty as servant of Crown” appearing in Section

270(1) of the Government of India Act, 1935. The following

observations of the Federal Court are material:

“As the consent of the Governor, provided for

in Section 270(1), is a condition precedent to
the institution of proceedings against a public
servant, the necessity for such consent cannot
be made to depend upon the case which the
accused or the defendant may put forward
after the proceedings had been instituted, but
must be determined with reference to the
nature of the allegations made against the
public servant, in the suit or criminal
proceedings. If these allegations cannot be
held to relate to “any act done or purporting to
be done in the execution of his duty” by the
defendant or the accused “as a servant of the
Crown,” the consent of the authorities would,
prima facie, not be necessary for the
institution of the proceedings. If, in the course

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of the trial, all that could be proved should be

found to relate only to what he did or
purported to do “in the execution of his duty,”
the proceedings would fail on the merits,
unless the Court was satisfied that the acts
complained of were not in good faith. Even
otherwise, the proceedings would fail for want
of the consent of the Governor, if the evidence
established only official 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

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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 sight, it seems

as though there is some support for this view in Hori Ram

Singh because Sulaiman, J. has observed in the said

judgment that as the prohibition is against the institution

itself, its applicability must be judged in the first instance at

the earliest stage of institution and Varadachariar, J. has also

stated that the question must be determined with reference to

the nature of the allegations made against the public servant

in the criminal proceeding. It is pertinent to note that the

Constitution Bench has further observed that a careful

perusal of the later parts of the judgment however show that

learned judges did not intend to lay down any such

proposition. The Constitution Bench quoted the said later

parts of the judgment as under:

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“Sulaiman, J. refers (at page 179) to the prosecution

case as disclosed by the complaint or the police
report and he winds up the discussion in these
words: "Of course, if the case as put forward fails or
the defence establishes that the act purported to
be done is in execution of duty, the proceedings
will have to be dropped and the complaint
dismissed on that ground". The other learned
Judge also states at page 185, "At this stage we
have only to see whether the case alleged against
the appellant or sought to be proved against him
relates to acts done or purporting to be done by him
in the execution of his duty". It must be so. The
question may arise at any stage of the proceedings.
The complaint may not disclose that the act
constituting the offence was done or purported to be
done in the discharge of official duty; but facts
subsequently coming to light on a police or judicial
inquiry or even in the course of the prosecution
evidence at the trial, may establish the necessity for
sanction. Whether sanction is necessary or not may
have to be determined from stage to stage. The
necessity may reveal itself in the course of the
progress of the case.”

The legal position is thus settled by the Constitution

Bench in the above paragraph. Whether sanction is necessary

or not may have to be determined from stage to stage. If, at

the outset, the defence establishes that the act purported to be

done is in execution of official duty, the complaint will have to

be dismissed on that ground.

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32. In Raj Kishor Roy, the appellant had filed a complaint

against respondent 1 therein, who was a police officer that he

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

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pertinent to note that this court referred to the Constitution

Bench Judgment in Matajog Dobey and observed that in that

case, the Constitution Bench has held that need for sanction

under Section 197 of the Code is not necessarily to be

considered as soon as the complaint is lodged and on the

allegations contained therein and the question may arise at

any stage of the proceedings.

33. In Pukhraj, the appellant, who was a clerk in the Head

Post Office, Jodhpur had filed a complaint against respondent

2, who was the Post Master General, Rajasthan, alleging

offences under Sections 323 and 502 of the IPC. Respondent

2 filed an application praying that the court should not take

cognizance of the offence without the sanction of the

Government as the acts alleged, if at all done by him, were

done while discharging his duties as a public servant. The

Rajasthan High Court held that respondent 2 could not be

prosecuted unless prior sanction of the Central Government

has been obtained. The order taking cognizance was quashed.

This court referred to Hori Ram Singh as well as Matajog

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Dobey. This court reiterated that whether sanction is

necessary or not may have to be decided from stage to stage

but in the facts of the case before it, this court set aside the

High Court’s order.

34. In Nagraj, the appeal was directed against the order of

the High Court rejecting the reference made by the Sessions

Judge Shimoga Division recommending the quashing of the

commitment order of the Magistrate committing the accused

to the Sessions trial of offences under Sections 307 and 326 of

the IPC on the ground that the Magistrate could not have

taken cognizance of the offences without sanction of the State

Government in view of the provisions of Sections 132 and 197

of the Criminal Procedure Code of 1898. The appellant therein

was a Sub-Inspector. He along with another person had

severely beaten up one Thimma and had wantonly fired from

revolver at other persons. It was contended that if the

question of sanction is not decided in the very first instance

when a complaint is filed or when the accused alleges that he

could not be prosecuted for the alleged offences without

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sanction of the Government, the protection given by law will be

nugatory as the object of giving this protection is that the

police officer is not harassed by any frivolous complaint. It is

important to note that this court in the context of the peculiar

facts before it, noted that there may be some such harassment

of the accused, but it had 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

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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 in Matajog Dobey.

35. In Abdul Wahab Ansari v. State of Bihar & Anr.10,

this court was again considering the question as to when the

plea that sanction was required to be obtained under Section

197 (1) of the Code can be raised. This Court reiterated that

previous sanction of the competent authority being a

precondition for the court in taking cognizance of the offence if

the offence alleged to have been committed by the accused can

be said to be an act in discharge of his official duty, the

question touches the jurisdiction of the Magistrate in the

matter of taking cognizance and, therefore, there is no

requirement that an accused should wait for taking such plea

till the charges are framed.

10
(2000) 8 SCC 500

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36. In our opinion Sankaran Moitra puts doubts, if any, to

rest. In that case the complainant had filed a complaint

before the Deputy Comissioner of Police that she had come to

know from the members of the public that her husband was

beaten to death by the police. She arrayed Assistant

Commissioner of Police and other police personnel as accused

and prayed for stern action against them. Accused 1 filed a

petition under Section 482 of the Code before the High Court

for quashing of the complaint on the ground that the

complaint could not have been entertained for want of

sanction under Section 197(1) of the Code. The High Court

dismissed the petition. Before this Court it was argued that

want of sanction under Section 197 of the Code did not affect

the jurisdiction of the Court to proceed, but it was only one of

the defences available to the accused and the accused can

raise the defence at the appropriate stage. This Court

considered Hori Ram Singh, Constitution Bench judgment in

Matajog Dobey and several other judgments on the point and

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rejected the said submission. We must reproduce the relevant

paragraph.

“Learned counsel for the complainant argued that

want of sanction under Section 197(1) of the Code
did not affect the jurisdiction of the Court to proceed,
but it was only one of the defences 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. 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 provision
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.”

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.

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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 Code. It is not

possible for us to hold that in such a case, the court cannot

look into any documents produced by the accused or the

concerned public servant at the inception. The nature of the

complaint may have to be kept in mind. It must be

remembered that previous sanction is a precondition for

taking cognizance of the offence and, therefore, there is no

requirement that the accused must wait till the charges are

framed to raise this plea. At this point, in order to exclude

the possibility of any misunderstanding, we make it clear that

the legal discussion on the requirement of sanction at the very

threshold is based on the finding in the earlier part of the

judgment that the present is not a case where the police may

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be held guilty of killing Munna Singh in cold blood in a fake

encounter. In a case where on facts it may appear to the court

that a person was killed by the police in a stage-managed

encounter, the position may be completely different.

38. It is not the duty of the police officers to kill the accused

merely because he is a dreaded criminal. Undoubtedly, the

police have to arrest the accused and put them up for trial.

This court has repeatedly admonished trigger happy police

personnel, who liquidate criminals and project the incident as

an encounter. Such killings must be deprecated. They are

not recognized as legal by our criminal justice administration

system. They amount to State sponsored terrorism. But, one

cannot be oblivious of the fact that there are cases where the

police, who are performing their duty, are attacked and killed.

There is a rise in such incidents and judicial notice must be

taken of this fact. In such circumstances, while the police

have to do their legal duty of arresting the criminals, they have

also to protect themselves. Requirement of sanction to

prosecute affords protection to the policemen, who are

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sometimes required to take drastic action against criminals to

protect life and property of the people and to protect

themselves against attack. Unless unimpeachable evidence is

on record to establish that their action is indefensible, mala

fide and vindictive, they cannot be subjected to prosecution.

Sanction must be a precondition to their prosecution. It

affords necessary protection to such police personnel. Plea

regarding sanction can be raised at the inception.

39. In our considered opinion, in view of the facts which we

have discussed hereinabove, no inference can be drawn in this

case that the police action is indefensible or vindictive or that

the police were not acting in discharge of their official duty.

In Zandu Pharmaceutical Works Limited, this Court has

held that the power under Section 482 of the Code should be

used sparingly and with circumspection to prevent abuse of

process of court but not to stifle legitimate prosecution. There

can be no two opinions on this, but, if it appears to the trained

judicial mind that continuation of a prosecution would lead to

abuse of process of court, the power under Section 482 of the

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Code must be exercised and proceedings must be quashed.

Indeed, the instant case is one of such cases where the

proceedings initiated against the police personnel need to be

quashed. In the circumstances, we dismiss the appeal filed by

the complainant Kailashpati Singh. We allow the appeal filed

by Om Prakash, Pradeep Kumar, Shyam Bihari Singh and

Bharat Shukla and set aside the impugned order to the extent

it dismisses Cr.M.P.No.822 of 2005 filed by them for quashing

order dated 14/06/2005 passed by Judicial Magistrate, 1st

Class, Jamshedpur, in Complaint Case No.731 of 2004 issuing

process against them. We quash Complaint Case No. 731 of

2004 pending on the file of Judicial Magistrate, 1st Class,

Jamshedpur.

……………………………………………..J.
(AFTAB ALAM)

……………………………………………..J.
(RANJANA PRAKASH DESAI)

NEW DELHI,
SEPTEMBER 26, 2012.

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