# Avinash Mishra v. State of U.P. & Ors

- **Citation:** Application U/S 482 Cr.P.C. No. 6939 of 2006
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-20
- **Case number:** Application U/S 482 Cr.P.C. No. 6939 of 2006
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/avinash-mishra-v-state-of-u-p-ors-46194
- **Pages:** 14

## Headnote

A. Criminal Law-Criminal Procedure Code
(2 of 1974) , Section 197 - Sanction for
prosecution
-
Government
power
to
review its
earlier
order
granting
or
refusing sanction to prosecute - when
permissible
-
only
if
matter
is
reconsidered in the light of fresh materials
- however it is not permissible for the
sanctioning
authority
to
review
or
reconsider
the
matter
on
the
same
materials again

In the earlier order refusing sanction - order of
Supreme Court for investigation by C.B.I., was
not taken into consideration - subsequently -
that additional material was placed before
Government - at the subsequent stage sanction
accorded on the basis of that additional material
- Held - No violation of law made by the
Government by according the said sanction
(Para 23)

B. Criminal Law- Criminal Procedure Code
(2 of 1974) , Section 197 - Sanction for
prosecution - Fake Encounter by police -
to eliminate offender cannot be held to fall
in official duty - Offence alleged have no
nexus or/and relation with discharge of
official duties as a Govt. Officer - Sanction
not necessary (Para 24)

Application dismissed (E-5)

List of cases cited :
1.St. of Punjab & anr. Vs Md Iqbal Bhatti 2009
(67) ACC 350

2.Suresh Kumar Bhikamchand Jain Vs Pandey
Ajay Bhushan & ors., 1998 CRI

3.St. of Ori & ors. Vs Ganesh Chandra Jew 2004
AIR SCW 1296

4.St. of Maha Vs Dr. Budhikota Subbard (1993)
3 SCC 339

5.St. through C.B.I. Vs B.L. Verma & anr.,
(1997) 10 SCC 772

6.St. thru C.B.I. Vs B.L. Verma & anr., (1997) 10
SCC 772

7.Amrik Singh Vs St .of Pepsu AIR 1955 SC 309

8.Mansukhlal Vithaldas Chauhan Vs St. of Guj
(1997) 7 SCC 622

9.R.S. Nayak Vs A.R. Antulay 1984 SCC (Cri)
172

10.Devendra Prasad Singh Vs St. of Bihar & anr.
AIR 2019 SC 1671

## Text

_Characters 0–39,677 of 49,405. This is a partial read: ask again with offset=39677 for what follows._

3-5 All. Avinash Mishra Vs. State of U.P. & Ors.
1661

33. The application is bereft of merit.
It is accordingly rejected.
----------
(2020)03-05ILR A1661
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2020

BEFORE

THE HON'BLE DINESH KUMAR SINGH-I, J.

Application U/S 482 Cr.P.C. No. 6939 of 2006

Avinash Mishra ...Applicant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Sri Vinay Saran, Sri Nandit K. Srivastava,
Sri Prashant Shukla, Sri Raghav Dev Garg,
Sri Vinay Saran, Sri Mohan Singh, Sri
Praveen Tripathi

Counsel for the Respondents:
G.A., Sri Anurag Khanna, Sri Gyan Prakas,
Sri Nazrul Islam Jafri, Sri Sanjay Kumar
Yadav

A. Criminal Law-Criminal Procedure Code
(2 of 1974) , Section 197 - Sanction for
prosecution
-
Government
power
to
review its
earlier
order
granting
or
refusing sanction to prosecute - when
permissible
-
only
if
matter
is
reconsidered in the light of fresh materials
- however it is not permissible for the
sanctioning
authority
to
review
or
reconsider
the
matter
on
the
same
materials again

In the earlier order refusing sanction - order of
Supreme Court for investigation by C.B.I., was
not taken into consideration - subsequently -
that additional material was placed before
Government - at the subsequent stage sanction
accorded on the basis of that additional material
- Held - No violation of law made by the
Government by according the said sanction
(Para 23)

B. Criminal Law- Criminal Procedure Code
(2 of 1974) , Section 197 - Sanction for
prosecution - Fake Encounter by police -
to eliminate offender cannot be held to fall
in official duty - Offence alleged have no
nexus or/and relation with discharge of
official duties as a Govt. Officer - Sanction
not necessary (Para 24)

Application dismissed (E-5)

List of cases cited :
1.St. of Punjab & anr. Vs Md Iqbal Bhatti 2009
(67) ACC 350

2.Suresh Kumar Bhikamchand Jain Vs Pandey
Ajay Bhushan & ors., 1998 CRI

3.St. of Ori & ors. Vs Ganesh Chandra Jew 2004
AIR SCW 1296

4.St. of Maha Vs Dr. Budhikota Subbard (1993)
3 SCC 339

5.St. through C.B.I. Vs B.L. Verma & anr.,
(1997) 10 SCC 772

6.St. thru C.B.I. Vs B.L. Verma & anr., (1997) 10
SCC 772

7.Amrik Singh Vs St .of Pepsu AIR 1955 SC 309

8.Mansukhlal Vithaldas Chauhan Vs St. of Guj
(1997) 7 SCC 622

9.R.S. Nayak Vs A.R. Antulay 1984 SCC (Cri)
172

10.Devendra Prasad Singh Vs St. of Bihar & anr.
AIR 2019 SC 1671

(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)

1. Heard Sri Nandit K. Srivastava,
learned Senior Counsel assisted by Sri
Prashant Shukla, learned counsel for the
applicant and Sri Gyan Prakash, learned
Senior Counsel assisted by Sri Sanjay
Kumar Yadav, learned counsel for the
C.B.I.
1662 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This present application has been
filed with a prayer to quash the order dated
26.4.2006 passed by Special Chief Judicial
Magistrate (CBI) Ghaziabad in Case No.
3140 of 2005, under Section 364, 120B,
302, 201, 220 IPC, P.S. Medical, District,
Meerut.

3. As per F.I.R., the prosecution
version is that on 26.2.1994, at about 10:15
O' clock, informant- Krishnapal Singh was
going to Shastri Nagar on scooter and when
he reached near supply depot at about
10:30 O' clock where existed a speed
breaker he slowed down his scooter then all
of a sudden two men stopped him showing
a country made pistol and snatched away
his scooter and fled towards Commissioner
Chauraha, right then police of P.S. Lal
Kurti reached there and he (informant) told
them that two miscreants had fled from
there after having snatched his scooter and
thereafter they gave a chase to the
miscreants. The registration number of
scooter of the informant was DL3SC0326.
He had borrowed the said scooter from one
of his friends and that he could recognize
the miscreants. The case crime no. 64 of
1994, under Section 392 was registered
against two unknown persons.

4. On the same day, another F.I.R.
was lodged being crime no. 82 of 94, under
Section 307 and 412 IPC, P.S. Medical
College, in which Station Officer- Avinash
Mishra along with his team mates had
proceeded in search of the accused persons.
When he was in Tajgarh at about 10:35 pm,
on 26.2.1994 he received an information
from control room on RT Set that two
miscreants had snatched scooter no. DL 3
SC 0326 from a person near supply depot,
P.S. Lal Kurti, Meerut and had turned
towards jail chungi and that the Inspector-
Lal Kurti was following them. Upon this
information,
he
proceeded
on
a
Government
Jeep
in
search
of
the
miscreants and when reached near road
bend towards Samrat Palace he saw the
scooter bearing no. DL 3 SC 0326 coming
from the side of jail Chungi which took
turn towards Samrat Palace. His police
team followed scooter, at that time, Shyam
Lal Kashyap, S.O., Nauchandi was coming
from the side of Samrat Palace. Having
seen his vehicle, at about 10:30 pm, the
miscreants turned towards his side (side of
the S.O. Avinash Mishra) and when they
found themselves surrounded, they fired
upon them/police with an intent to kill. The
police team challenged the miscreants and
thereafter the miscreants having left the
scooter on rough land, on the side of the
road, made fires upon the police personnel.
Thereafter the police challenged them that
they were surrounded by the police and that
they should throw their arms and surrender.
Several round of fires were made by the
police personnel in their defence in which
one of the miscreants (unknown) died on
the spot and the other succeeded in fleeing
away taking benefit of cover of darkness.
He was given chase by S.I., Mahesh
Chauhan, S.O. Nauchandi and Constable
583
Harendra
but
could
not
be
apprehended. The scooter was lying there
which was looted from the area of P.S., Lal
Kurti. The dead body of the unknown
miscreant, who was having ammunition
near his right hand and empty cartridges as
well as looted scooter, were lying on the
spot. In this encounter, the empty cartridges
used by the police personnel of 38 bore and
two empty cartridges fired by the Inspector
in-charge P.S. Lal Kurti and by Station incharge Nauchandi of 38 bore and empty
cartridges fired by S.S.I., Sanjay Sirohi of
38 bore and two empty cartridges of 38
bore fired by S.I. Mahesh Chauhan had
been brought by him (Avinash Mishra),
3-5 All. Avinash Mishra Vs. State of U.P. & Ors.
1663
which were deposited in sealed condition
with specimen seal. No police personnel
was injured in this encounter.

5. Thereafter on 22.12.1995, an F.I.R.
was registered against the applicant, details
of which are that a Writ Petition (Crl.) No.
93 of 1994 was filed before the Hon'ble
Supreme Court of India by Smt. Munni
Devi, wife of Om Prakash Maheshwari
alleging therein that her son Gopal
Maheshwari and his maternal uncle Suresh
Chandra were illegally taken away in the
morning on 25.2.1994 by U.P. Police from
the house of Suresh Chandra of Mohalla,
Jai Jairam, Kasganj and she apprehended
fake encounter and liquidation of Gopal
Maheshwari
by
police.
The
Hon'ble
Supreme Court directed that the District
and Sessions Judge, Meerut shall conduct
an inquiry and submit his report within
three months, which was submitted on
14.12.1995 before the Hon'ble Apex Court
and gist of the said report was as follows.
Gopal Maheshwari and Suresh Chandra
were picked up by Meerut police (Avinash
Mishra, applicant, the then S.O., P.S.
Medical College, Meerut, Sanjay Sirohi,
Chandra
Pal
Singh,
Mahesh
Singh,
companion police officials) from the house
of Suresh Chandra in Kasganj in the
intervening night of 24/25.2.1994 and he
was brought to Meerut. Suresh Chandra
was locked in the room of first floor of P.S.
Medical
College,
Meerut
and
Gopal
Maheshwari was whisked away to an
unknown destination but later on he was
killed in the night of 26/27.2.1994 by the
accused-applicant along with other named
co-accused and some other persons in
custody. A fake encounter was shown by
local police in the case with a view to
liquidate Gopal Maheshwari putting up a
theory of looting a scooter by Gopal
Maheshwari and subsequently encounter
was fabricated by police in conspiracy with
Krishnapal Singh, a private person. The
identity of the deceased Gopal Maheshwari
was known to the accused persons
including applicant and deliberately they
did not disclose it to the Prabhat Kumar
Sharma (City Magistrate, Meerut), who
prepared panchayatnama of the dead body
and the dead body of the deceased was
deliberately cremated as unclaimed. The
Hon'ble Supreme Court vide order dated
15.12.1995 directed further investigation to
be made in this matter by C.B.I., hence the
case was registered under Sections 120B,
302, 201, 218 IPC against above named
accused persons which includes applicant
and regular case was registered and
investigation was entrusted to Kishore
Kumar, Deputy S.P., C.B.I., SIC-IV, New
Delhi for investigation.

6. After investigation into this case,
charge sheet was submitted on 6.12.2000
against the accused-applicant mentioning
therein that deceased Gopal Maheshwari
and Suresh Chandra were picked up by
Meerut Police along with accused-applicant
and other co-accused from the house of
Suresh
Chandra
in
Kasganj
in
the
intervening night of 25.2.1994 and were
brought to Meerut. Suresh Chandra was
locked up in a room on the first floor of the
P.S. while the deceased Gopal Maheshwari
was taken away to an unknown destination
but later on he was killed in the intervening
night of 26/27.2.1994 by applicant and
other co-accused, while he was in custody.
A fake encounter was shown by the
applicant in order to liquidate the deceased
putting up a theory of looting of a scooter
by
the
deceased
and
subsequently
encounter was fabricated by police in
conspiracy with co-accused Krishnapal
Singh. The identity of the deceased was
known to the applicant and his teammates
1664 INDIAN LAW REPORTS ALLAHABAD SERIES
but they concealed the same and did not
disclose it to Prabhat Kumar Sharma,
Additional City Magistrate, Meerut who
prepared panchayatnama and cremated the
dead body as unclaimed. Thereafter the
Apex Court passed order dated 15.12.1995
directing C.B.I. to investigate the matter. It
was further found in the investigation that
Om Prakash Maheshwari was living with
his family in his house at 33 Hari Nagar in
Meerut in February 1994, who was a
broker in Sarrafa market and his son Gopal
Maheshwari (deceased) was also working
with him and was a Meena Artisan. The
deceased some time in January, 1994
reached Kasganj, District Etah and started
living and working there with his maternal
uncle Suresh Chandra due to constant
harassment by Meerut Police to involve
him in a cases falsely. It also emerged in
the investigation that applicant along with
other co-accused named above entered into
a criminal conspiracy during the period
1994 in Meerut to eliminate the deceased
by making a fake police encounter at
Meerut
on
26.2.1994
and
causing
disappearance of evidence to cover up the
theory of fake encounter. In pursuance of
the said conspiracy, the accused applicant
along with co-accused fabricated the theory
of police encounter that constable Lalit
Kumar of P.S. Medical College, while he
was on patrol duty, died in a road accident
on 11.2.1994 and his service rifle went
missing with regard to which a case crime
no. 63 of 1994, under Section 279, 304-A,
427, 379 IPC was registered at P.S.
Medical College on 12.2.1994 against
unknown.
Accused
applicant
Avinash
Mishra was the I.O. of the said case. An
anonymous letter was received disclosing
availability of the aforesaid missing service
rifle in the house of Suresh Chandra of
Kasganj, which was endorsed by Sri Shiv
Sagar Singh, C.O. Civil Lines, Meerut on
21.2.1994 to the accused-applicant to
enquire and report. The accused-applicant
and other co-accused left the Police Station,
Medical College vide G.D. entry no. 49 at
8:30 pm on 24.2.1994 and reached Kasganj
from Meerut by Maruti Car No. dDQ 8590
at about 3:15 am on 25.2.1994 for
investigation of the aforesaid case for
recovery of the missing service rifle. The
accused applicant and other teammates
took assistance of S.I. Bahadur Ali,
Constables Ramesh Chandra and Shiv
Shankar Mishra of P.S. Kasganj. Thereafter
the applicant and other teammates reached
house of Suresh Chandra (maternal uncle
of the deceased) in Mohalla Jaijai Ram,
Kasganj for recovery of the said missing
rifle. The search of his house was made but
nothing was recovered. The applicant and
co-accused picked up Suresh Chandra and
deceased Gopal Maheshwari (as he were
already available there) under the garb of
investigation/interrogation. The applicant
along with Suresh Chandra and Gopal
Maheshwari, SI Bahadur Ali and two
constables Ramesh Chandra and Shiv
Shankar Mishra came back to the P.S.
Kasganj, there S.I. Bahadur Ali took
accused-applicant to C.O. ML Ghai. The
applicant informed M.L. Ghai that he was
taking
two
persons
namely,
Suresh
Chandra and deceased Gopal Maheshwari
for the purposes of interrogation. S.I.
Bahadur Ali also informed this fact to
Govind Singh, S.O. P.S. Kasganj that the
accused-applicant had taken away the
aforesaid two persons in custody. The S.I.
Bahadur Ali and two other Constables
Ramesh Chandra and Shiv Shankar Mishra
on seeing the photograph of Gopal
Maheshwari (deceased) confirmed that the
said deceased was picked up by the
applicant along with other co-accused from
the house of Suresh Chandra, Mohalla
Jaijai Ram, Kasganj in the early morning of
3-5 All. Avinash Mishra Vs. State of U.P. & Ors.
1665
25.2.1994. Thereafter applicant and other
co-accused returned to P.S. Medical
College, Meerut by the said Maruti car.
Suresh Chandra was locked in a room of
the first floor of P.S. Medical College,
Meerut and deceased Gopal Maheshwari
was taken away to an unknown destination
and later on Suresh Chandra was released
on 26/27.2.1994. Further it is revealed in
investigation that accused Krishnapal Singh
took Bajaj scooter bearing no. DL 3 SC
0326 from Manoj kumar Mishra at about
9:30 pm on 26.2.1994, whereby he was
going to meet his friend Harendra Pal
Singh in Meerut for taking some money
from him as Krishnapal Singh was doing
business of supply of Video Cassetes to
various shopkeepers including the Manoj
Kumar Mishra. On way to Shashtrinagar,
Meerut, he slowed down his scooter due to
speed beaker on Mall Road near supply
depot at about 10:30 pm on 26.2.1994 and
it was then that two miscreants, one having
country made pistol, snatched his scooter at
pistol point and then both ran away towards
commissioner Chauraha. The investigation
further discloses that accused- Om Pal
Singh along with Sanjay Sirohi reached the
place
where
scooter
was
looted,
immediately by police jeep URI No. 7794.
Accused
Krishnapal
Singh
reported
accused Om Pal Singh and others about the
incident of loot then and there. Krishnapal
Singh also pointed out towards the scooter
which was being taken away by two
miscreants
towards
commissioner
Chauraha, The accused Om Pal Singh
directed Krishnapal Singh for lodging a
case of loot of scooter at P.S. Lalkurti,
Meerut, which was lodged as crime no. 64
of 1994, under Section 392 IPC, against
two unknown persons. Further it has come
in the investigation that accused- Inspector
Om Pal Singh flashed the message on R.T.
Set about the incident of loot and chased
miscreants along with Sanjay Sirohi and
others by police vehicle. Two miscreants
along with looted scooter were fleeing
towards
commissioner
chauraha.
The
accused Om Pal Singh and Sanjay Sirohi
were armed with service revolvers. Two
miscreants reached Samrat Palace under
P.S. Medical College, in open field where
scooter skidded and fell. On receipt of the
message on R.T. Set, accused Avinash
Mishra along with accused Mahesh Kumar
Singh, accused Chandra Pal Singh and
others and also accused Shyam Lal
Kashyap reached Samrat Palace. The
accused-applicant along with other accused
were armed with service revolvers. The
accused inspector Om Pal Singh also
chased the miscreants and reached Samrat
Palace. Two miscreants started firing upon
the police. Finding no way, the aforesaid
accused made 12 rounds of fire from their
service revolvers and in this cross fire, one
miscreant had killed, while other escaped.
Out of 12 rounds, the accused Om Pal
Singh fired one round, accused Mahesh
Singh fired two rounds, while accusedapplicant fired four rounds, accused Sanjay
Sirohi fired four rounds and Shyam Lal
Kashyap fired one round from their service
revolvers.
The
miscreant
(Gopal
Maheshwari) was thus killed in police
encounter, whereas the other miscreant
managed to escape. Many other senior
police officials also reached the spot on
receipt of message of encounter.

7. The case crime no. 82 of 1994,
under section 307, 412 IPC being crime no.
83 of 1994, under Sections 25 Arms Act
was registered on 26.2.1994 against two
unknown at P.S. Medical College on a
written report of applicant and investigation
was taken up by Ramker Singh, Inspector
Civil Lines, Meerut. Further it has come in
investigation that Sri Prabhat Kumar
1666 INDIAN LAW REPORTS ALLAHABAD SERIES
Sharma,
Additional
City
Magistrate
conducted Panchayatnama on 26/27.2.1994
of the deceased as an unidentified person of
25 years of age and articles recovered from
him were also noted, which are detailed in
the said investigation report. Further it has
come in investigation that unidentified
deceased (Gopal Maheshwari) had received
three injuries caused by bullets. Dr. Vinod
Kumar Gupta, Reserve Duty Medical
Officer,
Medical
College,
Meerut
conducted post-mortem report of the
deceased as an unidentified man and
recorded his cause of death to be shock and
hemorrhage due to injuries sustained and
also recovered three bullets from the body
of the deceased and thereafter the body of
the
deceased
was
cremated
as
unidentified/unclaimed. The accused Om
Pal Singh mentioned fact of encounter in
G.D. No. 4, dated 27.2.1994 at P.S. Lal
Kurti and accused Shyam Lal Kashyap
recorded the said fact in G.D. of P.S.
Nauchandi at serial no. 36 of 27.2.1994.
The accused applicant sealed 12 empties
fired by the accused persons and prepared
its
recovery
memo
dated
26.2.1994.
Subsequently, looted scooter was received
back by the accused Krishnapal Singh, who
identified the dead miscreant as the same
person on the spot, who was one of the two
scooter
snatchers.
Subsequently,
the
investigation of crime no. 82 and 83/1994,
under Section 307/412 and 25-A Arms Act
were taken by Sri Raghunath Shukla,
Inspector,C.B.C.I.D., Meerut, under the
order of Government of U.P. and he
submitted final report no. 47, dated
21.12.1995, in the court of ACJM-VI,
Meerut recommending closure of the both
the said crime numbers and got registered a
case under Section 302, 342, 346, 347, 364,
216, 217, 182, 201, 323, 193, 197, 198,
203, 211 and 120B IPC against the accused
applicant and others for killing the
deceased Gopal Maheshwari in a fake
encounter at P.S., Medical College. With a
view to proving false presence of the
deceased within District Meerut, accused
Pratap Singh got registered crime no. 49 of
1994, under section 504, 506 IPC, P.S.
Bhasuna, District Meerut on 25.2.1994
against deceased Gopal Maheshari and his
brother in pursuance to well planned
conspiracy. Further more accused persons
managed the surrender application in the
name of Gopal Maheshwari in the court of
ACJM-4, Meerut on 25.2.1994 in some
case falsely. It was also motivated attempt
to prove the physical presence of deceased
Gopal Maheshwari in Meerut on 25.2.1994.
During investigation by C.B.I., the theory
of police encounter was found to be
absolutely false and concocted by the
accused persons and so was the case of
surrender application under Section 504
and
506
IPC
as
mentioned
above.
Investigation
also
discloses
that
on
25.2.1994, Vishnu Kumar sent a telegram
to the Hon'ble Chief Justice of India, New
Delhi mentioning that Suresh Chandra and
Gopal Maheshwari (deceased) had been
brought to Meerut, at about 4:00 am on
25.2.1994 from Kasganj for killing them in
a fake encounter. Another telegram was
also sent to S.S.P., Meerut by Rakesh on
25.2.1994 to the effect that Meerut Police
had brought Gopal Maheshwari from
Kashganj for fake encounter. Further
investigation
revealed
that
Gopal
Maheshwari (deceased) was known from
before to the accused-applicant and other
co-accused, who got his body cremated as
unidentified with ulterior motive. Further
there was found no speed beaker on the
Mall Road on 26.2.1994. Further it has
come in investigation that accompanying
other police men were not associated with
the accused persons at the time of
encounter and that the accused-applicant,
3-5 All. Avinash Mishra Vs. State of U.P. & Ors.
1667
co-accused Sanjay Sirohi, Mahesh Singh
and Chandra Pal Singh kidnapped the
deceased Gopal Maheshwari from Kasganj
on 25.2.1994, hence they committed
offence under Section 364 IPC and
thereafter accused-applicant, Sanjay Sirohi,
Mahesh Singh, Chandra Pal Sing, Om Pal
Singh, Shyam Lal Kashyap committed his
murder
on
26.2.1994
and
caused
disappearance of evidence and fabricated a
false police encounter case in conspiracy
with co-accused Krishnapal Singh and thus
they committed offence under Section 120B IPC read with Section 302, 201, 220 IPC
and substantive offences thereof. Accused-
Pratap Singh lodged false crime no. 49 of
1994, under Section 504 and 506 IPC at
P.S. Bahsuma, Meerut on 24.2.1994 against
deceased Gopal Maheshwari and his
brother, whereas deceased was in illegal
custody of the aforesaid accused and thus
he has committed an offence under Section
201 IPC. Further it is mentioned in the
charge sheet that Government of U.P. was
requested on 5.4.2019 for according
sanction for prosecution against aforesaid
accused persons but the same was still
awaited. The officers of the C.B.I. of the
level of D.S.P., S.P. and D.I.G. pursued
matter at various levels including Chief
Secretary and many reminders were also
issued to the Government and ultimately
court was pleased to issue direction to the
State Government on 12.7.2001 through
Chief Secretary to expedite taking decision
to accord sanction for prosecution within
60 days. Government did not respond and
then
the
court
issued
reminder
on
8.11.2001 to the Chief Secretary of U.P. for
compliance of the order dated 12.7.2001 of
the court. In spite of directions of the court,
sanction had yet not been issued by the
State Government and prayer was made
that cognizance of the offences may be
taken against accused persons and they be
summoned and be put to trial according to
law.

8. The submission made by the
learned counsel for the applicant is that
admittedly charge sheet was filed on
6.12.2001 awaiting sanction from the State
Government, thereafter the case was
numbered as 1419 of 2001 in the court of
Special Chief Judicial Magistrate (CBI,
Dehradun) and applicant was summoned
vide order dated 13.8.2002. Prior to the
order
dated
13.8.2002,
the
State
Government vide its order dated 24.7.2002
refused to grant sanction for prosecution of
the applicant and copy thereof was
forwarded to DIG (CBI) SIC-IV New
Delhi, for appropriate action at their end,
which is annexed at annexure- 5 but for the
reasons best known to the prosecuting
agency despite the official communication
of the said order of the State Government
dated 24.7.2002 refusing the grant of
sanction, the same was never placed before
Special Chief Judicial Magistrate (CBI),
Dehradun,
who
has
summoned
the
applicant vide order dated 13.8.2002. The
applicant was also not informed about the
said order regarding refusing of sanction.
Therefore left with no option, the applicant
challenged the order dated 13.8.2002
passed in case no. 1419 of 2001 by the
Special Chief Judicial Magistrate, CBI, in
Crl. Revision No. 94 of 2002 before
Additional
Sessions
Judge/FTC-
First
Dehradun, stating therein that the applicant
could not have been prosecuted without
proper sanction. Vide judgment and order
dated 17.9.2003, the revisional court
allowed the revision and set aside the order
dated 13.8.2002 of Special Chief Judicial
Magistrate, CBI, Dehradun. Further it is
argued that refusal of sanction was
deliberately concealed by the prosecuting
agency, both at the time of passing
1668 INDIAN LAW REPORTS ALLAHABAD SERIES
summoning order dated 13.8.2002 and at
the time of arguments in criminal revision
no. 94 of 2002. The revisional court while
allowing the revision observed that in case
the sanction for prosecution by the State
Government is granted in future, the matter
would again revive and thereafter the
matter was consigned. The prosecuting
agency thereafter clandestinely pursued the
matter at the State level and concealed the
facts that previously after examining the
entire matter, State of U.P. vide order dated
24.7.2002 had refused the sanction to
prosecute the applicant and that the
summoning order was set aside. It is further
submitted that it is apparent that the State
thereafter without even going through the
record of the case, vide order dated
15.7.2005
accorded
sanction
for
prosecution of the applicant, which is
annexure-7 to the application. Immediately
thereafter an application was moved by the
learned counsel for the C.B.I. before J.M.,
C.B.I., Dehradun to reopen the matter in
the light of subsequent sanction order dated
15.7.2005. The learned Judicial Magistrate,
C.B.I., thereafter on the said application,
directed that the record be sent to the
competent court having jurisdiction in the
light of order passed by Uttranchal High
Court after creation of new State of
Uttaranchal, true copy of the order dated
13.9.2005 is annexure-8 to the application.
Thereafter the matter was sent to the court
of C.J.M., CBI, Ghaziabad who after going
through the record took cognizance and
summoned the accused vide order dated
26.4.2006, which is annexed at annexure-9.
The said order is bad in law as the same is
based on an order which has been obtained
by concealment of material facts. No fresh
reason have been assigned by the State
while deviating from its earlier order dated
24.7.2002. The applicant is a Government
servant and due to false implication, his
entire career is at stake and he got the
knowledge of the summoning order dated
26.4.2006 on 16.6.2006 and the same is
nothing but an abuse of process of court
therefore the same needs to be quashed.

9. Learned counsel for the applicant
has
placed
reliance
upon
State
of
Himachal Pradesh, 2010 (14) SCC 527, in
which Hon'ble Apex Court has dealt with
power of the Government to review its
order granting or refusing sanction to
prosecute. In this case, respondent was said
to have been caught red-handed accepting
bribe
from
the
complainant;
upon
completion of the investigation, vigilance
Department sought sanction under Section
19
from
Government
to
prosecute
respondent; Principal Secretary had found
no justification in granting sanction to
prosecute the respondent and hence the
same was refused; thereafter the Vigilance
Department took up the matter again with
Principal Secretary, Health for grant of
sanction;
Competent
Authority
reconsidered the matter and granted the
sanction to prosecute the respondent; no
fresh material was available for further
consideration; it was held that sanction to
prosecute public servant may be granted
only where fresh materials have been
collected
by
investigating
agency
subsequent to earlier order and matter is
reconsidered by sanctioning authority in the
light
of
fresh
materials;
power
of
sanctioning authority, being not of a
continuing character, could have been
exercised only once on the same materials.

10. Learned counsel for the applicant
has placed reliance upon State of Punjab
and Anr. Vs. Mohammed Iqbal Bhatti,
2009 (67) ACC 350, in which matter dealt
by the Apex Court was whether the State
has any power to review the order; it was
3-5 All. Avinash Mishra Vs. State of U.P. & Ors.
1669
held that in the event it appears from the
order and record that even if a valid order is
not authenticated in terms of article 166 (3)
of the Constitution of India, the same
would not be vitiated in law; failure to
authenticate an executive order is not fatal
as the said order is directory and not
mandatory, hence no interference was
warranted and accordingly, the appeal was
dismissed. Paragraph nos. 5 and 6 of the
said judgment are quoted hereinbelow:-

5. The respondent is a public
servant. The Governor of the State of
Punjab is his appointing authority. He is,
therefore, not removable from his office
save by and with the sanction of the
Government and in that view of the matter
if he is accused in any offence alleged to
have been committed by him while acting
or purporting to act in discharging of his
official duty, grant of prior sanction is
imperative in character in terms of Section
197 of the Code of Criminal Procedure,
1973. The power of the State, as is well
known, is performed by an executive
authority authorized in this behalf in terms
of the Rules of Executive Business framed
under Article 166 of the Constitution of
India insofar as such a power has to be
exercised in terms of Article 162 thereof.
Once a sanction is refused to be granted,
no appeal lies thereagainst.

11. Learned counsel for the applicant
has placed reliance upon Suresh Kumar
Bhikamchand Jain Vs. Pandey Ajay
Bhushan and others, 1998 CRI. L. J.
1242, in which process was issued by the
Magistrate for appearance of the accused
on being satisfied that there was ground for
proceeding; plea by the accused taken
before Magistrate was that offence was
committed by him in discharge of official
duty and that court had no power to take
cognizance in absence of previous sanction
of government; it was held that accused can
produce relevant materials to establish
necessary ingredients for invoking section
197(1) Cr.P.C.

12. Learned counsel for the applicant
has placed reliance upon State of Orissa &
Others Vs. Ganesh Chandra Jew, 2004,
AIR SCW 1296, in which it has been held
by Hon'ble Apex Court that the expression
'no court shall take cognizance of such
offence except with previous sanction'
makes protection mandatory and bars the
very cognizance of complaint'. Further it is
held that the expression 'any offence
alleged to have been committed by him
while acting or purporting to act in
discharge of his official duty'. In the said
expression, the expression 'official duty'
implies that the act or omission must have
been done by public officer in course of his
service and that it should have been in
discharge of his duty. The section does not
extend its protective cover to every act or
omission done by a public servant in
service but restricts its scope of operation
to only those acts or omissions which are
done by a public servant in discharge of
official duty. Further it is held that it has
been
widened
further
by
extending
protection to even those acts or omissions
which are done in proposed exercise of
official duty. That is under colour of office,
Official duty, therefore implies that the act
or omission must have been done by a
public servant in course of his service and
such act or omission must have been
performed as part of the duty which further
must have been official in nature. The
section has thus to be construed strictly,
while determining its applicability to any
act or omission in course of service. Its
operation has to be limited to those duties
which are discharged in course of duty. But
1670 INDIAN LAW REPORTS ALLAHABAD SERIES
once any act or omission has been found to
have been committed by a public servant in
discharge of his official duty, then it must
be given liberal and vide construction so far
its official nature is concerned. For instance
a public servant is not entitled to indulge in
criminal activities. To that extent the
section has to be construed narrowly and in
a restricted manner but once it is
established that act or omission was done
by public servant while discharging his
duty then the scope of its being official
should be construed so as to advance
objective of the section in favour of the
public servant.

13. Learned counsel for the applicant
has
placed
reliance
upon
State
of
Maharashtra Vs. Dr. Budhikota Subbard,
(1993) 3 SCC 339, in which it is held by
Hon'ble Apex Court that for protection
under Section 197 Cr.P.C., the offence
must have been committed 'while acting or
purporting to act in discharge of his official
duty'; further the meaning of official duty
has been referred as (1) act or omission
must have been done by public servant in
course of his service and (2), it should have
been done in discharge of his duty.

14. Learned counsel for the applicant has
placed reliance upon State through C.B.I. Vs.
B.L. Verma & another, (1997) 10 SCC 772. In
this case, it is held by the Apex Court that
provision of Section 197 Cr.P.C. is mandatory,
hence where the actions alleged against public
servant to be constituting offences had been
done in purported discharge of his duties, even
though amounting to abuse of power, it was
held that the trial court could not, in absence of
sanction under Section 197 Cr.P.C. take
cognizance of the said offences and therefore it
was held that High Court had rightly directed
the dropping of the proceedings, however, it
was further held that such an order of the High
Court did not have the effect of barring grant of
Section subsequently and activating the
prosecution thereafter.

15. Learned counsel for the applicant has
placed reliance upon R.Balakrishna Pillai Vs.
state of Kerala & another, (1996) I SCC 478.
In this case, it is held that for extending
protection under Section 197 Cr.P.C., it has to
be assessed as to whether the act complained of
had a direct nexus or relation with the official
duties of a public servant and that will depend
on facts of each case. It was further held that
where the act is directly and reasonably
connected with official duty as in the present
case the act alleged was directly and reasonably
connected with the official duty of a Minister,
therefore, it attracted protection under Section
197(1) Cr.P.C. and it is further held that
protection under Section 197(1) Cr.P.C. extends
to public servant even if the public servant
sought to be prosecuted has ceased to be a
public servant on the date of taking cognizance
of the offence.

16. Learned counsel for the applicant
has placed reliance upon Amrik Singh Vs.
State of Pepsu, AIR 1955 Supreme Court
309. Paragraph no. 11 of the said judgment
is as follows:-

11. ............The result then is that
whether sanction is necessary to prosecute
a public servant on a charge of criminal
misappropriation, will depend on whether
the acts complained of hinge on his duties
as a pubic servant. If they do, then sanction
is requisite. But if they are unconnected
with such duties, then no sanction is
necessary.

17. Learned counsel for the applicant
has placed reliance upon Mansukhlal
Vithaldas Chauhan Vs. State of Gujarat,
(1997) 7 SCC 622. In this case, it is held
3-5 All. Avinash Mishra Vs. State of U.P. & Ors.
1671
that sanction for prosecution requires to be
a
valid
sanction
which
involves
independent application of mind to the
facts of the case as also material and
evidence collected during investigation by
the Authority competent to grant sanction.
The sanction issued by an Authority on the
directions of the High Court is held to be
invalid because there was no independent
application of mind by the said authority.
The High Court's direction had taken away
discretion of the Authority not to grant
sanction and it was left with no choice but
to
mechanically
accord
sanction
in
obedience of the mandamus issued by the
High Court.

18. Learned counsel for the applicant
has placed reliance upon R.S. Nayak Vs.
A.R. Antulay, 1984 SCC (Cri) 172. In this
case it is held that MLA is not a public
servant. It is further held that accused must
continue to be a public servant on the date
of taking cognizance of the offence and not
on the date of commission of the offence
which are per-conditions for granting
sanction. It is further held that where a
accused holds a number of public offices,
competent authority to accord sanction
would be the one, competent to remove
him from office which he is alleged to have
misused and abused with corrupt motive.
The removing authority has to apply its
mind
on
the
question
of
sanction
considering the allegation regarding corrupt
use of the official power.

19. From the side of C.B.I., counter
affidavit has been filed in which it is stated
that case was registered on 22.12.1995 at
C.B.I./SIC-IV, New Delhi in pursuance of
the order of Apex court dated 15.12.1995 in
Writ Petition (Crl.) No. 93 of 1994 (Smt.
Muni Devi Vs. State of U.P.) against S.L.
Kashyap the then Station Officer, P.S.
Nauchandi, Meerut and other co-accused
which includes the accused applicant under
Section 120-B read with Section 302, 364,
201 and 220 IPC and subsequently
investigation was entrusted to C.B.I/S.I.C.-
IV, Lucknow on 27.12.1995. The petitioner
Munni Devi was mother of the deceased
Gopal Maheshwari, who stated that her
brother Suresh Chandra and her son Gopal
Maheshwari
(deceased)
were
illegally
taken away on the morning of 24.2.1994 by
police personnel subsequently in the night
of
26/27.2.1994
deceased
Gopal
Maheshwari was killed in fake encounter.

20. In response to the averments made
in the affidavit from the side of applicant, it
is submitted that in course of investigation,
sufficient
evidence
was
gathered
to
prosecute the applicant along with other coaccused. S.P.'s report dated 19.3.1999 was
sent to Government of U.P. requesting to
accord sanction for prosecution and for
departmental
action.
Deepti
Vilas,
Secretary, Government of U.P. vide letter
dated 24.7.2002 intimated C.B.I. the
decision of the State Government regarding
sanction for prosecution against accused
officers including the accused-applicant,
photo copy of the said letter is annexed at
annexure CA-1 to the counter affidavit.
C.B.I. filed charge sheet on 7.12.2001
against the accused-applicant and other coaccused in the court of C.J.M., without
sanction for prosecution and the trial court
took
cognizance
on
17.1.2002.
On
16.7.2004, the same court passed an order
that in absence of sanction for prosecution,
the proceedings of the case were closed and
the same could be resumed if the sanction
for
prosecution
was
accorded.
Subsequently, the sanction of prosecution
against the accused persons was granted
under Section 197 Cr.P.C. by the State
Government vide order dated 15.7.2005
1672 INDIAN LAW REPORTS ALLAHABAD SERIES
which is annexed at annexure CA-2. It is
further mentioned that the trial has
remained held up for last five years and
that it is imperative in the interest of justice
that the stay order dated 21.6.2006 be
vacated so that the trial may proceed.

21. Reliance has been placed by
C.B.I. upon Devendra Pratap Singh Vs.
State of Bihar and Anr., AIR SC 1671, in
which a police officer (S.H.O) was alleged
to have committed offences of hurt, theft
and criminal intimidation and it was held
that the said offences did not have any
nexus or relation with discharge of his
official duties as Government officers,
hence sanction was not necessary.

22.