Page 1

  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

Page 2

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.  

2

Page 3

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  

3

Page 4

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  

4

Page 5

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  

5

Page 6

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  

6

Page 7

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  

7

Page 8

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  

8

Page 9

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  

9

Page 10

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  

10

Page 11

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.      Empower  1  

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

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

of     Mysore  4, 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

11

Page 12

K.     Satwant     Singh      v.      The     State     of     Punjab  6 and State     of    

Orissa     through     Kumar     Raghvendra     Singh     &     Ors.      v.    

Ganesh     Chandra     Jew  7  .   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

12

Page 13

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  

13

Page 14

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  

14

Page 15

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  

15

Page 16

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  

16

Page 17

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.

17

Page 18

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

18

Page 19

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  

19

Page 20

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  

20

Page 21

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  

21

Page 22

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  

22

Page 23

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.

23

Page 24

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.

24

Page 25

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  

25

Page 26

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  

26

Page 27

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  

27

Page 28

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  

28

Page 29

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  

29

Page 30

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  

30

Page 31

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  

31

Page 32

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  

32

Page 33

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  

33

Page 34

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  

34

Page 35

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.  

35

Page 36

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  

36

Page 37

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  

37

Page 38

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:  

38

Page 39

“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.  

39

Page 40

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  

40

Page 41

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  

41

Page 42

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  

42

Page 43

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  

43

Page 44

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

44

Page 45

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  

45

Page 46

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.  

46

Page 47

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  

47

Page 48

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  

48

Page 49

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  

49

Page 50

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.

50