# Brajendra Kumar Gupta v. State Of U.P. & Ors

- **Citation:** (2016) 4 ILRA 429
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-26
- **Bench:** Bala Krishna Narayana, Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brajendra-kumar-gupta-v-state-of-u-p-ors-43648
- **Pages:** 16

## Headnote

The instant petition has been filed with a prayer to issue writ, order or direction in the nature of Certiorari
quashing the impugned order dated 21.11.2014 passed by Principal Secretary (Home), U.P. Government at
Lucknow, respondent no.2 whereby the sanction to prosecute the respondent no.4 Sri J. Ravindra Gaur,
Senior Superintendent of Police, Aligarh has been refused in Case Crime No.571 of 2008 (Now Case Crime
No.R.C.-053201050006), under Sections 302,201,120-B IPC, police station CBI/SCB, Lucknow.

The order impugned dated 21.11.2014 passed by Principal Secretary (Home), U.P. Government at Lucknow,
the respondent no.2, is hereby quashed. The writ petition is hereby allowed.

Held: Para-

Case Law discussed:
G.B. Mahajan v. Jalgaon Municipal Council (1991) 3 SCC;
State of U.P. Vs. Dharmendra Prasad Singh, AIR 1989 SC 997;
(2013)15 SCC 624; Urmila Devi Vs. Yudhvir Singh;
(2014)2 SCC 532; Manohar Lal Sharma Vs. Principal Secretary and Others;
(2012) 3 SCC 64; Subramanian Swamy Vs. Manmohan Singh and Another;
(2014) 13 SCC 70; Chandan Kumar Basu Vs. State of Bihar;
(2001) 43 ACC 516; P.K. Pradhan Vs. State of Sikkim
(2002) 45 ACC 788; Raj Kishore Roy Vs. Kamleshwar Pandey and Another;
(2013) 8 SCC 119; State of Maharashtra Vs. Mahesh G. Jain;
(2008) 11 SCC 289; Raghunath Anant Goveilkar Vs. State of Maharashtra;
(2013) 80 ACC 526; Anupam Singh Vs. Central Bureau of Investigation;
Criminal Appeal No.722 of 2015 (D.T. Virupakshappa. Vs. C. Subhash)
2012) 12 SCC 72; Om Prakash and others Vs. State of Jharkhan;
(2015) 3 SCC 123; Sanjay Sinh Ramrao Chavan Vs. Dattatray Gulab Rao Phalke and others.

## Text

_Characters 0–39,988 of 53,395. This is a partial read: ask again with offset=39988 for what follows._

4 All. Brajendra Kumar Gupta Vs State Of U.P. & Ors.
429
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Criminal Misc. Writ Petition No.- 6880 Of 2015

Brajendra Kumar Gupta ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amit Kumar Srivastava

Counsel for the Respondents:
Govt.Advocate, N.I.Jafri, Shwetashwa Agarwal

The instant petition has been filed with a prayer to issue writ, order or direction in the nature of Certiorari
quashing the impugned order dated 21.11.2014 passed by Principal Secretary (Home), U.P. Government at
Lucknow, respondent no.2 whereby the sanction to prosecute the respondent no.4 Sri J. Ravindra Gaur,
Senior Superintendent of Police, Aligarh has been refused in Case Crime No.571 of 2008 (Now Case Crime
No.R.C.-053201050006), under Sections 302,201,120-B IPC, police station CBI/SCB, Lucknow.

The order impugned dated 21.11.2014 passed by Principal Secretary (Home), U.P. Government at Lucknow,
the respondent no.2, is hereby quashed. The writ petition is hereby allowed.

Held: Para-

Case Law discussed:
G.B. Mahajan v. Jalgaon Municipal Council (1991) 3 SCC;
State of U.P. Vs. Dharmendra Prasad Singh, AIR 1989 SC 997;
(2013)15 SCC 624; Urmila Devi Vs. Yudhvir Singh;
(2014)2 SCC 532; Manohar Lal Sharma Vs. Principal Secretary and Others;
(2012) 3 SCC 64; Subramanian Swamy Vs. Manmohan Singh and Another;
(2014) 13 SCC 70; Chandan Kumar Basu Vs. State of Bihar;
(2001) 43 ACC 516; P.K. Pradhan Vs. State of Sikkim
(2002) 45 ACC 788; Raj Kishore Roy Vs. Kamleshwar Pandey and Another;
(2013) 8 SCC 119; State of Maharashtra Vs. Mahesh G. Jain;
(2008) 11 SCC 289; Raghunath Anant Goveilkar Vs. State of Maharashtra;
(2013) 80 ACC 526; Anupam Singh Vs. Central Bureau of Investigation;
Criminal Appeal No.722 of 2015 (D.T. Virupakshappa. Vs. C. Subhash)
2012) 12 SCC 72; Om Prakash and others Vs. State of Jharkhan;
(2015) 3 SCC 123; Sanjay Sinh Ramrao Chavan Vs. Dattatray Gulab Rao Phalke and others.

(Delivered by Hon'ble Naheed Ara Moonis, J.)
430 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Heard Sri Amit Kumar Srivastava, learned counsel for the petitioner, Sri Imran Ullah,
learned Additional Advocate General, learned counsel for CBI Sri N.I. Jafri, respondent no.3 as
well as Sri Navin Sinha, Senior Advocate, assisted by Sri Shwetashwa Agarwal, learned counsel
appearing on behalf of respondent no.4.

2. The instant petition has been filed with a prayer to issue writ, order or direction in the
nature of Certiorari quashing the impugned order dated 21.11.2014 passed by Principal Secretary
(Home), U.P. Government at Lucknow, respondent no.2 (hereinafter referred to as the Sanctioning
Authority) whereby the sanction to prosecute the respondent no.4 Sri J. Ravindra Gaur, Senior
Superintendent of Police, Aligarh has been refused in Case Crime No.571 of 2008 (Now Case
Crime No.R.C.-053201050006), under Sections 302,201,120-B IPC, police station CBI/SCB,
Lucknow.

3. Further prayed to issue writ, order or direction in the nature of Mandamus commanding
the respondent nos.1 and 2 to accord sanction for the prosecution of the respondent no.4 in the
above noted case.

4. It is necessary to bring on record that initially the writ petition was filed by Brijendra
Kumar Gupta, who is the father of the victim in the aforesaid case. Brijendra Kumar Gupta died
during the pendency of the writ petition and his son Shikhar Kumar Gupta has been substituted
vide order dated 17.8.2015 as his legal heir and representative.

5. Two questions are involved in the instant writ petition. Firstly, as to whether the
respondent no.2 has rightly refused to accord sanction for prosecution of respondent no.4 in the
aforesaid Case Crime No.571 of 2008; and secondly as to whether the aforesaid order is amenable
to the jurisdiction of this Court under Article 226 of the Constitution of India as the order impugned
has been passed by the Administrative Authority.

6. Learned counsel appearing on behalf of the respondent no.4 has raised a preliminary
objection with regard to the maintainability of the writ petition hence we think appropriate to
answer first the latter question.

7. It has been argued by the learned Senior counsel for the respondent no.4 that the
impugned order passed by the respondent no.2 is in the exercise of administrative function and the
Hon'ble High Court cannot sit as an appellate authority over the decision of an order of
Administrative Authority. The respondent no.3 has acted reasonably in refusing to accord sanction
to prosecute the respondent no. 4 after taking into account the material facts and evidence. It has
further been argued that all the accused police official had acted in self defence in which one
person, namely, Pankaj Mishra @ Karan was injured and Mukul Gupta, the son of the petitioner,
was killed on 30.6.2007 in a police encounter. There is ample evidence on record that the police
official had acted in discharge of their official duty and any excessive act would not be a ground to
prosecute the public servant. It was a case of cross firing from both sides. The impugned order has
4 All. Brajendra Kumar Gupta Vs State Of U.P. & Ors.
431
been passed by the respondent no.2 in the light of the order passed by this Hon'ble Court dated
27.5.2014 in Criminal Misc. Writ Petition No.6538 of 2014.

8. To lend cogency to his submission on the maintainability of the writ petition, the learned
counsel has placed reliance upon the decisions of Hon'ble the Apex Court in U.P. Financial
Corporation Vs. Gem Cap (India) Pvt. Ltd. And others reported in AIR 1993 Supreme Court 1435,
Om Kumar And Ors vs Union Of India reported in AIR 2000 Supreme Court 3689 and Indian
Railways Construction Company Ltd. Vs. Ajay Kumar reported in AIR 2003 Supreme Court 1843.
It is contended that in respect of the administrative action taken by the authority it would not be
appropriate to the writ court to sit as an appellate court, even if the authority has acted unfairly and
unreasonably. It does not mean that High Court exercising its jurisdiction under Article 226 of the
Constitution can sit as an appellate authority over the acts and deeds of the concerned authority and
seek to correct them. Doctrine of fairness evolved in administrative law was not supposed to
convert the writ courts into appellate court over administrative authorities. Learned counsel has laid
emphasis on para 11 of the U.P. Financial Corporation case(Supra) wherein it has been observed as
under:

"The obligation to act fairly on the part of the administrative authorities was
evolved to ensure the Rule of Law and to prevent failure of justice. This doctrine is complementary
to the principles of natural justice which the Quasi-Judicial Authorities are bound to observe. It is
true that the distinction between a quasi-judicial and the administrative action has become thin, as
pointed out by this Court as far back as 1970 in A.K. Kraipak and Ors. V. Union of India and Ors.:
[1970]1SCR457 . Even so the extent of judicial scrutiny/judicial review in the case of
administrative action cannot be larger than in the case of quasi-judicial action. If the High Court
cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it
follows equally that it cannot do so in the case of administrative authorities. In the matter of
administrative action, it is well-known, more than one choice is available to the administrative
authorities; they have a certain amount of discretion available to them. They have "a right to
choose between more than one possible course of action upon which there is room for reasonable
people to hold differing opinions as to which is to be preferred'' (Lord Diplock in Secretary of
State for Education v. Tameside Metropolitan Borough Counsel at 1064. The Court cannot
substitute its judgment for the judgment of administrative authorities in such cases. Only when the
action of the administrative authority is so unfair or unreasonable that no reasonable person would
have taken that action, can the Court intervene. To quote the classic passage from the judgment of
Lord Greene MR in Associated Provincial Picture Houses Ltd. V. Wednesbury Corporation at 229.
It is true the discretion must be exercised reasonably. Now what does than mean?
Lawyers familiar with the phraseology commonly used in relation to exercise of statutory
discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently
been used and is frequently used as a general description of the things that must riot be done. For
instance, a person entrusted with the discretion must, so to speak, direct himself properly in law.
He must call his own attention to the matters which he is bound 40 to consider. He must exclude
from his consideration matters which are irrelevant to what he was to consider. If he does not obey
those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, there
432 INDIAN LAW REPORTS ALLAHABAD SERIES
may be something so absurd that no sensible person could ever dream that it lay within the powers
of the authority."

9. It is further contended that in Om Kumar (Supra) the Hon'ble Apex Court has held that
where administrative action is challenged as discriminatory under Article 14 of the Constitution of
India, the principle of primary review is for the courts applying proportionality and where
arbitrariness is attacked the principle of secondary review based only on Wednesbury principle
would apply.

10. Learned counsel has emphasised on para 67 as held in the case of Om Kumar (Supra):

But where an administrative action is challenged as "arbitrary" under Article 14
on the basis of Royappa (1974) 4 SCC 3 (as in cases where punishments in disciplinary cases are
challenged), the question will be whether the administrative order is "rational" or "reasonable"
and the test then is the Wednesbury test. The courts would then be confined only to a secondary
role and will only have to see whether the administrator has done well in his primary role, whether
he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant
factors into consideration or whether his view is one which no reasonable person could have taken.
If his action does not satisfy these rules, it is to be treated as arbitrary. In G.B. Mahajan v. Jalgaon
Municipal Council (1991) 3 SCC 91 at p. 111 Venkatachaliah, J. (as he then was) pointed out that
"reasonableness" of the administrator under Article 14 in the context of administrative law has to
be judged from the stand point of Wednesbury rules.

11. The learned counsel has further contended that in para 13 of Indian Railway
Construction Company Ltd. (Supra) the Apex Court has dealt with scope for judicial review in the
matter of exercise of powers by the disciplinary authority which is as follows:

"One of the points that falls for determination is the scope for judicial interference
in matters of administrative decision. Administrative action is stated to be referable to broad area of
Governmental activities in which the repositories of power may exercise every class of statutory
function of executive, quasi-legislative and quasi-judicial nature. It in tribe law that exercise of
power, whether legislative or administrative, will be set aside if there is manifest error in the
exercise of such power or the exercise of the power is manifestly arbitrary. See State of U. P. V.
Renusagar Power Co., AIR 1988 SC 1737. At one time, the traditional view in England was that
the executive was not answerable where its action was attributable to the exercise of prerogative
power. Professor De Smith in his classical work 'Judicial Review of Administrative Action' 4th
Edition at pages 285-287 states the legal position in his own terse language that the relevant
principles formulated by the Courts may be broadly summarised as follows. The authority in which
a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any
particular manner. In general, a discretion must be exercised only by the authority to which it is
committed. That authority must genuinely address itself to the matter before it; it must not act
under the dictates of another body or disable itself from exercising a discretion in such individual
cases. In the purported exercise of its discretion, it must not do what it has been forbidden to do,
4 All. Brajendra Kumar Gupta Vs State Of U.P. & Ors.
433
nor must it do what has been authorised to do. It must act in good faith, must have regard to all
relevant considerations arid must not be influenced by irrelevant considerations, must not seek to
promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and
must not arbitrarily or capriciously. These several principles can be conveniently grouped in two
main categories; (i) failure to exercise a discretion; and (ii) excess or abuse of discretionary power.
The two classes are not, however, actually exclusive. Thus, discretion may be improperly fettered
because irrelevant, considerations have been taken into account, and where an authority hands over
its discretion to another body insets ultra vires."

12. Learned counsel appearing on behalf of the respondent no.2 submitted that in view of
the aforesaid cases it is abundantly clear that the respondent no.2 while passing the order impugned
has exercised his administrative power well within its jurisdiction with all fairness hence does not
require any interference by the writ court.

13. We have given our anxious consideration to the submission advanced by the learned
counsel appearing on behalf of the respondent no.4 with regard to the maintainability of the instant
writ petition.

14. In our view, the legality or validity of the order granting or refusing sanction would be
subject of review by the criminal courts. There is no dispute with regard to the well settled
principles of law cited hereinabove but authority concerned is expected to act consciously and
cautiously while taking such serious decisions and if the decision making body goes outside its
power or acts with some ulterior object then the courts can only interfere.

15. From the perusal of the aforesaid decisions cited by the learned counsel for the
respondent no.4 the back ground facts of the cases are entirely different. Indian Railway
Construction Company (Supra) is a case where an employee who was temporary employed and
was not confirmed even after his probation period, had assaulted a senior officer and along with
others ransacked the office creating chaotic condition, and an order of dismissal was passed against
the said employee without holding an inquiry. The Division Bench of High Court held that Article
311(2) was not attracted. However, it upheld the judgment of the learned Single Judge holding that
on a limited judicial review, the order dispensing with inquiry was not sustainable.

16. In Om Kumar and others (Supra) certain officers of Delhi Development Authority who
were connected with the land of the Delhi Development Authority allotted to one M/s Skipper
Construction Company before receiving the auction amount in full and also in "conniving" at the
construction, disciplinary enquiry was initiated against him and major punishment was imposed
hence further proceeding was dropped by the Apex Court.

17. In U.P. Financial Corporation (Supra) in respect of loan sanctioned by U.P. Financial
Corporation with certain terms and conditions and an agreement deed was executed and financial
amount was released in favour of the respondents. Thereafter first respondent unit was declared a
sick unit and did not make any repayment of loan as stipulated in the agreement and the Financial
434 INDIAN LAW REPORTS ALLAHABAD SERIES
Corporation took step to take over the unit and issued notice for recovering the amount and the
corporation took steps to take over the unit.

18. The question involved in the present case is entirely distinct and different. The person
for whose prosecution the sanction has to be sought is not required to move any representation to
the Competent Authority before it takes a decision in the matter. Validity of an order of sanction
would depend upon application of mind on the part of the authority concerned and the material
placed before it. The sanctioning authority must apply its mind on such material facts and evidence
collected during the investigation and should not pass order on "extraneous consideration" not
germane for passing a statutory order. This Court is conscious of the fact and it is also well settled
that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do
so.

19. In the present case, the material placed by the complainant or the investigating agency
was only required to be seen by the competent authority. The investigation of the case was taken
over by the respondent no.3 on the direction of this Court and after investigation the charge sheet
was submitted against co-accused police personnel against whom sanction was accorded by the
sanctioning authority. In such circumstances the role played by the respondent no.4 cannot be
deciphered exonerating him as if the sanctioning authority has assumed powers of trial judge. In
such circumstances judicial review which is an integral part of basic structure of the Constitution to
be exercised by Superior Court cannot be curtailed. Judicial review is directed not against the
decision but is confined to the examination of the decision making process. Judicial review is a
protection and not a weapon. It is not intended to take away from administrative authorities the
powers and discretion vested in them by law. In Chief Constable of the North Wales Police v.
Evans, [1982] 1 WLR 1155 refers to the merits-legality distinction in judicial review. Lord Hail-
sham said:

"The purpose "of judicial review is to ensure that the individual receives fair
treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter
which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the
court."

Lord Brightman observed:

" ..... Judicial review, as the words imply, is not an appeal from a decision, but a
review of the manner in which the decision was made ...."

And held that it would be an error to think:

" ..... that the court sits in judgment not only on the correctness of the decisionmaking process but also on the correctness of the decision itself."
4 All. Brajendra Kumar Gupta Vs State Of U.P. & Ors.
435
20. The aforesaid observations were quoted with approval by their Lordships of Supreme
Court in State of U.P. Vs. Dharmendra Prasad Singh, AIR 1989 SC 997 and while upholding that
the judicial review is directed not against the decision, but is confined to the examination of the
decision making process, it was held by the Supreme Court as under:-

"When the issue raised in judicial review is whether a decision is vitiated by taking
into account irrelevant, or neglecting to take into account, relevant factors or is so manifestly
unreasonable that no reasonably authority entrusted with the power in question could reasonable
have made such a decision, the judicial review of the decision making process includes
examination, as a matter of law, of the relevance of the factors."

21. In view of the above conspectus the preliminary objection raised by the learned counsel
appearing for the answering respondent no.4 has no force and is rejected.

22. Now in order to examine the validity of the order impugned it is necessary to discuss
the background of the case.

23. The facts giving rise to the present petition are that petitioner Brajendra Kumar Gupta,
the father of the victim Mukul Gupta moved an application under Section 156(3) Cr.P.C. on
16.5.2008 before the Court of Chief Judicial Magistrate, Bareilly against eight police officials
including the respondent no.4, J. Ravindra Gaur, IPS, the then Additional Superintendent of Police,
Bareilly with regard to brutal killing of his son Mukul Gupta stating therein that he is a retired
Engineer and resident of Budaun. His youngest son Mukul Gupta, who was brilliant and educated
person, having no criminal antecedents, was engaged in the business of medicines and was also
doing a part time job in a reputed Firm at Bareilly as Computer Accountant. On account of his
frequent visit to Bareilly he had taken a rented house at Mohalla Sanjay Nagar, Bareilly. The
respondent no.4, J. Ravindra Gaur, IPS, the then Additional Superintendent of Police (Trainee),
Bareilly wanted some certificate to please his senior police officers. He was eager for out of turn
promotion. He hatched a conspiracy and set up a fake police encounter in association with his
subordinate police officers and one informer. On 30.6.2007 at 9 am when his son Mukul Gupta was
travelling on rickshaw he was intercepted by the Inspector Kotwali who robbed one lac rupee and
his mobile phone and was handed over to the respondent no.4, J. Ravindra Gaur, the Additional
Superintendent of Police, Bareilly. The respondent no.4 setting up a false and fake police encounter
along with accompanying police officials killed his son and a false case was registered by the
respondent no.4, J. Ravindra Gaur against Mukul Gupta under Sections 307 IPC and Section 25 of
the Arms Act. It was further stated that in the false case set up by the respondent no.4 no police
officials had sustained any injury nor the Tata Sumo was damaged and the son of the petitioner was
done to death by firing on his head. There was serious lapses on the part of the police officials.
Several complainants were made by the petitioner and he also tried to lodge the FIR against police
officials but no report was lodged on the basis of the aforesaid application. The aforesaid
application under Section 156(3) Cr.P.C. was rejected by the Chief Judicial Magistrate, Bareilly by
an order dated 18.6.2008.
436 INDIAN LAW REPORTS ALLAHABAD SERIES
24. Aggrieved by the said order the petitioner filed a petition (bearing Criminal Misc.
Application (u/S 482 Cr.P.C.) No.17364 of 2008) before this Court. This Court by order dated
14.7.2008 had quashed the order dated 18.6.2008 passed by the Chief Judicial Magistrate, Bareilly
and the learned Magistrate was directed to pass a fresh order on the application moved by the
petitioner under Section 156(3) Cr.P.C. Thereafter on 22.8.2008 the Chief Judicial Magistrate,
Bareilly passed an order for registering the FIR against the named accused persons and directed
that the offence be investigated. The FIR was ultimately registered against all the accused persons
named in the FIR as Case Crime No.571 of 2008, under Sections 302,201,120-B IPC at police
station Fatehganj West, District Bareilly on 11.9.2008.

25. The investigation was entrusted to the local police who submitted the final report
against all accused persons. When the petitioner had approached to the higher authorities the case
was transferred to SIS Budaun who again submitted final report in favour of the accused persons.
The first informant-petitioner, on account of the unfair and impartial investigation by the SIS
approached this Court by filing a writ petition (bearing Criminal Misc. Writ Petition No.20275 of
2008) for transferring the investigation of the case to some other investigating agency. By order
dated 26.2.2010 this Court found substance in the argument of the learned counsel for the petitioner
and arrived at conclusion that such material discloses a prima facie case calling for an investigation
by the CBI hence directed to transfer the investigation to the Central Bureau of Investigation
(hereinafter referred to as CBI), the respondent no.3.

26. The case was registered by the CBI, respondent no.3 on 17.6.2010 under Sections
302,201,120-B IPC as Case Crime No.RC 0532010S0006 at police station CBI/SCB, Lucknow.
CBI conducted the investigation and submitted the charge sheet before the designated court.
According to the inquiry report of the CBI, dated 24.12.2012 there was no firing from the side of
the victim it was a case of fake encounter and the FIR lodged by the respondent no.4 J. Ravindra
Gaur under Sections 307 IPC and 25 Arms Act was found to be false. The CBI forwarded the
report to the respondent nos.1 and 2 for according sanction to prosecute the respondent no.4 and
other police officials.

27. On 24.9.2013 the respondent no.2 relying upon the FIR lodged by the respondent no.4
and other materials had refused to accord sanction to prosecute the respondent no.4. The
sanctioning authority has taken into account that the case was registered by the respondent no.4 as
Case Crime No.545 of 2007, under Section 307 IPC against Pankaj Mishra @ Karan, Mukul Gupta,
the deceased (son of the petitioner) and one unknown person at police station Fatehganj, West,
District Bareilly alleging that respondent no.4 had received an information through an informer that
miscreants travelling by a Tata Sumo were planning to loot a bank near Gate under C.B . Ganj,
Police Station Bareilly. The respondent no.4 along with his gunner and driver chased the vehicle
and intercepted the Tata Sumo near railway crossing and it was alleged that the person sitting
inside the vehicle started firing upon him and his gunner and asked the person sitting in the vehicle
to stop firing upon the police party then respondent no.4 directed the police officials to fire in self
defence. His gunner had fired nine rounds from A.K. 47 riffle and in this firing Mukul Gupta, the
son of the petitioner was killed and one miscreant was also injured while one person ran away and
4 All. Brajendra Kumar Gupta Vs State Of U.P. & Ors.
437
the driver of the said vehicle surrendered before the police. Countrymade weapons were recovered
by the police. Live cartridges as well as empty cartridges were also recovered from one Pankaj
Mishra @ Karan who was the friend of the deceased. Fire arm was also recovered from the
possession of Mukul Gupta, the son of the petitioner. Live and empty cartridges were found inside
the Tata Sumo besides two mobile phones, sim card, driving licence and pass book of Mukul Gupta
along with Rs.1560/-. Hence a case under Section 25 Arms Act was registered as Case Crime
No.546 of 2007 against Pankaj Mishra @ Karan and Case Crime No.547 of 2007 under Section 25
Arms Act against Mukul Gupta at police station Fatehganj, West, District Bareilly. The sanctioning
authority found that charge sheet was submitted in the case against Pankaj Mishra @ Karan and
Mukul Gupta under Section 307 IPC and thus the act of the respondent no.4 was done by him in
discharge of his official duty and as such he had committed no offence and is entitled for the
protection under Section 197 of the Code of Criminal Procedure.

28. The petitioner aggrieved by the order dated 24.9.2013 passed by the respondent no.2
refusing to accord sanction for prosecution of the respondent no.4 Sri J. Ravindra Gaur and other
police officials filed a writ petition (bearing Criminal Misc. Writ Petition No.6538 of 2014). This
Court after considering all the aforesaid background facts of the case and hearing the counsel for
both the parties, allowed the writ petition by order dated 27.5.2014. The concluding part of the
order is delineated hereinbelow:

"From the facts as borne out from the records of the present writ petition as well
as from the report submitted by the C.B.I., it is apparently clear that the story as set up in the first
information report lodged by J. Ravindra Gaur himself being Case Crime Nos. 545 of 2007, 546 of
2014 and 547 of 2014, Police Station Fatehganj West, District Bareilly enclosed as Annexure-6 to
the present writ petition, has been found to be false after investigation by the C.B.I. In its report,
C.B.I. has categorically recorded finding that there had been no firing from the side of the victims
and that it was a case of fake encounter. The State Government has failed to appreciate that the
firing by the police party upon the deceased had admittedly been opened on the asking of the
respondent no.4 J. Ravindra Gaur, as was stated in the order impugned and in the first information
report lodged by him. Further the recovery of illicit arms etc. Near the dead body of the Mukul
Gupta has also been found to be false. Thus, the fact disclosed in the first information report
lodged by J. Ravindra Gaur, was a false story.

The State Government has failed to take note of the contents of the first
information report lodged by J. Ravindra Gaur and the facts as per the report submitted by the
C.B.I. in the matter of it being a case of fake encounter.

We may record that the human life has been lost as per the report of the C.B.I. due
to fake encounter. In our opinion there is little or no reason for the details as disclosed in the
report of the C.B.I. being ignored, while passing the order impugned.
438 INDIAN LAW REPORTS ALLAHABAD SERIES
The State Government has also failed to consider that if there was no firing from
the side of the victims, where was the occasion for firing by the police party in alleged self-defence
under orders of J. Ravindra Gaur.

We are of the considered opinion that the matter needs to be re-visited by the State
Government in light of the contents of the first information report lodged by J. Ravindra Gaur
being Case Crime Nos. 545 of 2007, 546 of 2014 and 547 of 2014 and the facts as disclosed in the
report of the C.B.I. implicating J. Ravindra Gaur and other police officers in a case of fake
encounter.

We may record that the law down by the Apex Court in the cases of State of
Maharashtra Through Central Bureau of Investigation as well as in the case of Mansukhlal
Vithaldas Chauhan (Supras) with regard to the sufficient material being not gone into by the High
Court and further that there cannot be a direction to grant sanction for prosecution by the Court
are well settled principles of law. But in the facts of the present case, we find that the State
Government has not applied its mind to the relevant facts specifically the contents of the first
information report lodged by J. Ravindra Gaur and the facts reported by the C.B.I. after
investigation, which clearly implicates the police officers in a case of fake encounter.
Accordingly, the impugned order passed by the Secretary (Home), U.P.
Government at Lucknow dated 24th September, 2013 cannot be legally sustained and hereby is
quashed.

Writ petition is allowed with a cost of Rs. 50,000/- to be paid by the State to the
petitioner for generating uncalled for litigation and for passing such illegal orders.

The State Government is directed to reconsider the issue of grant of sanction for
prosecution in the facts of the present case after re-examining the report submitted by the C.B.I. in
detail along with the contents of the first information reported lodged by J. Ravindra Gaur being
Case Crime Nos. 545 of 2007, 546 of 2014 and 547 of 2014.

Let the necessary exercise may be completed within four weeks from the date a
certified copy of this order is filed before respondent no.1."

29. Pursuant to the aforesaid order passed by this Court dated 27.5.2014 the matter again
came up before the sanctioning authority. The sanctioning authority by the impugned order dated
21.11.2014 again passed the order refusing to accord sanction for prosecution of the respondent
no.4 Sri J. Ravindra Gaur as envisaged under Section 197 of the Code of Criminal Procedure. The
sanctioning authority found that the petitioner had set up a false case and the FIR lodged by the
answering respondent no.4 Sri J. Ravindra Gaur and the testimony of Budh Sen who was the gate
man of railway crossing in S.T. No.321 of 2009 arising out of case crime no.545 of 2007 amply
shows that the firing was made in self defence which resulted into killing of Mukul Gupta. The
respondent no.4 was unarmed and had not fired who was a trainee at the time of incident. Arms
4 All. Brajendra Kumar Gupta Vs State Of U.P. & Ors.
439
recovered from the deceased and his associates were in running condition which were used by
them.

30. The learned counsel for the petitioner has vehemently argued that the order impugned
whereby the sanctioning authority has refused to accord sanction to prosecute the respondent no.4
Sri J. Ravindra Gaur is discriminatory in nature as on the same set of evidence the sanction for
prosecuting other police official has been accorded by the State Government. The respondent no.2
has exceeded its jurisdiction and considered the representation moved by the respondent no.4 and
had also considered extraneous material by taking into account the statement of the witnesses
recorded during trial in S.T. No.321 of 2009 when the trial is subjudice against other police
officials. The sanctioning authority as if has passed the order of acquittal of the respondent no.4,
which is not permissible and is in clear violation of the order passed by this Court dated 27.5.2014
as in the said order it was specifically directed that the matter needs to be re-visited by the State
Government in the light of the contents of the FIR lodged by the respondent no.4 Sri J. Ravindra
Gaur and the report of the CBI in respect of the FIR lodged against the respondent no.4 Sri J.
Ravindra Gaur and other police officials in false and fake encounter case. The charge sheet has
already been submitted in the court of Special Judicial Magistrate-I, CBI against other police
officials on 20.8.2014 and in respect of the respondent no.4 it has been categorically mentioned that
the respondent no.4 is not charge sheeted and has not been sent for trial for want of receiving
sanction for prosecution against him as required under Section 197 of the Code of Criminal
Procedure. In other words there are clinching material against the respondent no.4 for being
prosecuted, yet the sanctioning authority has committed manifest error by ignoring the report
submitted by the CBI. The sanctioning authority has refused to accord sanction by giving undue
weightage to the statement of Vicky Sharma, Budh Sen and Pankaj Mishra @ Karan recorded
under Section 164 Cr.P.C. before the Court in S.T. No.321 of 2009 that the person sitting in the
Tata Sumo had started firing upon the police officials and the police officials in self defence had
fired and, hence the report of the CBI is contrary to the facts and circumstances. It has wrongly
been observed by the sanctioning authority that the respondent no.4 being a trainee unarmed and no
firing was took place at his instance and other police officials had fired nine rounds on the direction
of the respondent no.4 in self defence. All the aforesaid conclusion drawn by the sanctioning
authority is absolutely based upon extraneous consideration,contrary to the report submitted by the
CBI on 20.8.2014 whereby the respondent no.4 J. Ravindra Gaur, Constable Gauri Shankar
Vishwakarma and Constable Jagvir Singh have been found guilty of the offence punishable under
Sections 34/304-II, 12-B,193,218 IPC and rest of the police official under Sections 120-B,193,218
IPC. The sanction for prosecution under Section 197 of the Code of Criminal Procedure against
other police officials has been granted by the State Government on 13.6.2014/11.8.2014. The role
played by each of the police official is not material at the stage of considering issue of granting or
refusing sanction. The respondent no.4 being a responsible officer himself indulged in breaking the
norms of morality by indulging in criminal activities in connivance with his subordinates. It is no
part of the duty of the public servant to indulge in malpractice by abusing position Prior sanction
under Section 197 of the Code of Criminal Procedure is a shield to such a scrupulous public servant
in protecting himself.
440 INDIAN LAW REPORTS ALLAHABAD SERIES
31. To advance submission the learned counsel for the petitioner has relied upon the
following cases:
1. (2013)15 SCC 624; Urmila Devi Vs. Yudhvir Singh;
2. (2014)2 SCC 532; Manohar Lal Sharma Vs. Principal Secretary and others;
3. (2012) 3 SCC 64; Subramanian Swamy Vs. Manmohan Singh and another;
4. (2014) 13 SCC 70; Chandan Kumar Basu Vs. State of Bihar;
5. (2001) 43 ACC 516; P.K. Pradhan Vs. State of Sikkim
6. (2002) 45 ACC 788; Raj Kishore Roy Vs. Kamleshwar Pandey and another.

32. On the basis of the aforesaid decisions of Hon'ble the Apex Court as well as of this
Court learned counsel for the petitioner submitted that there is no reasonable connection between
the act done by the respondent no.4 with discharge of his official duty. The sanctioning authority
has proceeded to place much reliance upon the material produced by the respondent no.4 that there
is clinching evidence to show that there is reasonable connection between the act and in
discharging the performance of official duty. The respondent no.2 in a summary way without
considering the report of the CBI in correct perspective where it was categorically mentioned that
there was no firing from inside the vehicle and there was continuous firing from the side of the
police officials, refused to accord sanction. In such circumstances of the case the prosecution ought
to have been given an opportunity to establish its case by cogent evidence and also an opportunity
to be given to the defence to establish that he had been acting in discharge of his official duty
which can only be judged during course of trial. The court is required to analyze the evidence
produce at the stage of taking cognizance as to whether prima facie offence is made out or not. The
court is conscious to protect the public servant from harassment by frivolous or vexatious
prosecution. It is within the domain of the court when trial proceeds on merits to find out that the
official duty and the act of the respondent no.4 were so inter-related that it was done by him though
possibly in excess of the needs and requirement of situation. The protection given under Section
197 of the Code of Criminal Procedure is available only when the alleged act done by the public
servant is reasonably connected with the discharge of his official duty.

33. Per contra learned Additional Advocate General Sri Imran Ullah has refuted the
contentions of the learned counsel for the petitioner and submitted that the respondent no.2 has
exercised its power by ascertaining whether the respondent no.4 has committed the offence as
alleged while acting or purporting to act in discharge of his official duty or not. The respondent
no.2 has refused to grant sanction which was not an idle formality upon consideration of relevant
facts and materials. The decision taken by the respondent no.2 cannot be said to be unwarranted or
the respondent no.2 has exercised his power arbitrarily.

34. To prop up submissions the learned counsel for the respondents has placed reliance on
the following decisions:

1. (2013) 8 SCC 119; State of Maharashtra Vs. Mahesh G. Jain;
2. (2008) 11 SCC 289; Raghunath Anant Goveilkar Vs. State of Maharashtra;
3. (2013) 80 ACC 526; Anupam Singh Vs. Central Bureau of Investigation;
4 All. Brajendra Kumar Gupta Vs State Of U.P. & Ors.
441
4. Criminal Appeal No.722 of 2015 (D.T. Virupakshappa. Vs. C.