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Criminal Appeal No. 1491 of 2012 (Arising out of Special Leave Petition (Crl.) No. 4002 of 2006) and Criminal Appeal No. 1492 of 2012 (Arising out of Special Leave Petition (Crl.) No. 1946 of 2007). Case: 1. Om Prakash and Ors., 2. Kailashpati Singh Vs 1. State of Jharkhand through the Secretary, Department of Home, Ranchi-1 and Anr., 2. Rajiv Ranjan Singh and Anr.. Supreme Court (India)

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Case NumberCriminal Appeal No. 1491 of 2012 (Arising out of Special Leave Petition (Crl.) No. 4002 of 2006) and Criminal Appeal No. 1492 of 2012 (Arising out of Special Leave Petition (Crl.) No. 1946 of 2007)
CounselFor Appearing Parties: K.V. Vishwabathan, Colin Gonsalves, Mukul Rohtagi, Sr. Advs., Naveen Kumar, Abhishek Kaushik, Tariq Adeeb, Jyoti Mendiratta, Ratan Kumar Choudhuri, Vishwajit Singh, Abhindra Maheshwari, Pankaj Singh and Veera Kual Singh, Advs.
JudgesAftab Alam and Ranjana Prakash Desai, JJ.
IssueArms Act - Sections 25(1), 25(1B), 26, 27, 35; Explosive Substance Act - Sections 4, 5, 6; Government of India Act, 1935 - Section 270(1); Indian Penal Code - Sections 34, 120B, 203, 302, 307, 323, 324, 326, 353, 367, 379, 387, 392, 394, 397, 411, 414, 427, 502; Code of Criminal Procedure (CrPC), 1898 - Sections 132, 164, 197, 197(1), 197(2), 1...
Citation2012 BomCR 339 (Cri), 2012 (4) JLJR 166, JT 2012 (9) 642 SC, 2012 MLJ 433 (Crl), 2012 (4) PLJR 89, 2012 (9) SCALE 291, 2012 (12) SCC 72
Judgement DateSeptember 26, 2012
CourtSupreme Court (India)

Judgment:

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 Code of Criminal Procedure (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.

  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 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 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 Indian Penal Code.

  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 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 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 and 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 and 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 reason given by the High Court for not quashing proceedings against Appellants Om Prakash and 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 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 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 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...

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