# Siya Ram Saran Aditya v. The State of U.P. & Ors. Opp. Parties

- **Citation:** (2019) 2 ILRA 657
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-26
- **Case number:** U/S 482/378/407 No. 3855 of 2013
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siya-ram-saran-aditya-v-the-state-of-u-p-ors-opp-parties-44726
- **Pages:** 20

## Headnote

A. Cr.P.C., 1973 - Section 482 and Section
197 - For initiation of prosecution of Public
Servant, the sanction under Section 197 of
Cr.P.C. is mandatory and submission of
charge sheet without any valid sanction is
illegal - Subsequent sanction granted by
State Government on the same materials
cannot be a ground for reviewing or
reconsidering the earlier order refusing to
grant sanction - On facts, act of the
Petitioners found to be done within their
658 INDIAN LAW REPORTS ALLAHABAD SERIES
official capacity and in discharge of their
official duty-The act complained of is done
in performance of duty or in purported
performance of duty is to be determined
by the competent authority and not by the
Court- No prima facie case made out. (Para
21, 22,23,24,25,32,33,45,47,48,54 & 55)

The following issues are required to be
adjudicated while deciding the instant petition
under Section 482 of Cr.P.C.:

"(I). Whether the act done by
petitioners in the present case was within the
official capacity in discharge of their official
duty? - Section 129 is attracted in the instant
case and any Executive Magistrate or officer
in-charge of the Police Station or, in the
absence of such officer in charge, any police
officer not below the rank of a Sub-Inspector
may command any unlawful assembly to
disperse. If such a command given under subsection (1) is not obeyed, then such force as
may be necessary may be used to disperse the
assembly. The facts of the case clearly show
that the petitioner Siya Ram Saran Aditya who
was the then Senior Superintendent of Police
are present on the spot and took decision to
open fire and accordingly firing was done after
examining the situation and necessity of the
said act.

(II) Whether prior sanction under
Section 197 of Cr.P.C. is necessary in the
present
case
before
prosecuting
the
petitioners?

(III) Whether the charge-sheet could
be submitted against the petitioners without
prior sanction under Section 197 of Cr.P.C.?
(Considering issues no, II & III together) - The
petitioners were (sic) at the place of incident
in his official capacity and during that time he
was the Senior Superintendent of Police,
therefore, being the senior most police officer
at the place of incident, it was the duty of the
petitioner Siya Ram Saran Aditya to maintain
law and order of the said locality. In the
present case on hand, the accused being a
Police Officer while maintaining the law and
order was discharging the official duty.
Therefore, for initiation of prosecution, the
sanction under Section 197 of Cr.P.C. is
required whereas in the present case the
charge-sheet was filed against the accused
persons in absence of any valid sanction.

(IV) Whether the court concerned has
committed legal error in taking cognizance and
summoning the petitioners to face trial in
absence of valid / prior sanction under Section
197 of Cr.P.C.?

(V) Whether the firing in which one
person died and oth

## Text

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2 All. Siya Ram Saran Aditya Vs The State of U.P. & Ors.
657

10. The Apex Court in case of
Dilawar Babu Kurane Vs. State of
Maharashtra 2002 (2) SCC 135, has
observed that:-

" In exercise of jurisdiction under
Section of Code of Criminal Procedure,
the Judge cannot act merely as a post
office or a mouthpiece of the prosecution
but
has
to
consider
the
broad
probabilities of the case, the total effect of
the evidence and the documents produced
before the court but could not make a
roving enquiry into the pros and cons of
the matter and weigh the evidence, as if
he was conducting a trial."

11. The Apex Court in the case of
Som Mittal vs Government of Karnataka,
2008 (3) SCC 753, has held that :-

"When grave miscarriage of justice
would be committed if the trial is allowed
to proceed; or where the accused would
be harassed unnecessarily if the trial is
allowed; or when prima facie it appears
to Court that the trial would likely to be
ended in acquittal. Then the inherent
power of the Court under section 482 of
the Code of Criminal Procedure can be
invoked by the High Court either to
prevent abuse of process of any Court, or
otherwise To secure the ends of justice."

12. Thus on the basis of law laid
down by the Apex Court as well as the
plain reading of the complaint, no case is
made out for prosecuting the applicant
under Section 3 of the ''Act, 1966'. The
learned Magistrate has further erred in
summoning the accused without any
application of mind.

13. As a result of the conclusion and
the
findings
recorded
above,
the
proceedings in Criminal Case No. 1203 of
2019 arising out of Crime No. 13 of 2018,
under Section 3 of Railway Property
(Unlawful Possession) Act, 1966, Police
Station R.P.F. Post Gonda, District Gonda
as well as the summoning order dated
3.5.2019 as against the applicant Jai
Narain Tiwari are quashed.

14. The application under Section
482 Cr.P.C. is allowed in terms of the
order passed above.
----------

(2019)10ILR A 657

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.09.2019

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

U/S 482/378/407 No. 3855 of 2013
alongwith
U/S 482/378/407 No. 5430 of 2013

Siya Ram Saran Aditya ...Applicant
Versus
The State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Santosh Srivastav, K.K. Sharma

Counsel for the Opposite Parties:
Bireshwar Nath, Nadeem Murtaza

A. Cr.P.C., 1973 - Section 482 and Section
197 - For initiation of prosecution of Public
Servant, the sanction under Section 197 of
Cr.P.C. is mandatory and submission of
charge sheet without any valid sanction is
illegal - Subsequent sanction granted by
State Government on the same materials
cannot be a ground for reviewing or
reconsidering the earlier order refusing to
grant sanction - On facts, act of the
Petitioners found to be done within their
658 INDIAN LAW REPORTS ALLAHABAD SERIES
official capacity and in discharge of their
official duty-The act complained of is done
in performance of duty or in purported
performance of duty is to be determined
by the competent authority and not by the
Court- No prima facie case made out. (Para
21, 22,23,24,25,32,33,45,47,48,54 & 55)

The following issues are required to be
adjudicated while deciding the instant petition
under Section 482 of Cr.P.C.:

"(I). Whether the act done by
petitioners in the present case was within the
official capacity in discharge of their official
duty? - Section 129 is attracted in the instant
case and any Executive Magistrate or officer
in-charge of the Police Station or, in the
absence of such officer in charge, any police
officer not below the rank of a Sub-Inspector
may command any unlawful assembly to
disperse. If such a command given under subsection (1) is not obeyed, then such force as
may be necessary may be used to disperse the
assembly. The facts of the case clearly show
that the petitioner Siya Ram Saran Aditya who
was the then Senior Superintendent of Police
are present on the spot and took decision to
open fire and accordingly firing was done after
examining the situation and necessity of the
said act.

(II) Whether prior sanction under
Section 197 of Cr.P.C. is necessary in the
present
case
before
prosecuting
the
petitioners?

(III) Whether the charge-sheet could
be submitted against the petitioners without
prior sanction under Section 197 of Cr.P.C.?
(Considering issues no, II & III together) - The
petitioners were (sic) at the place of incident
in his official capacity and during that time he
was the Senior Superintendent of Police,
therefore, being the senior most police officer
at the place of incident, it was the duty of the
petitioner Siya Ram Saran Aditya to maintain
law and order of the said locality. In the
present case on hand, the accused being a
Police Officer while maintaining the law and
order was discharging the official duty.
Therefore, for initiation of prosecution, the
sanction under Section 197 of Cr.P.C. is
required whereas in the present case the
charge-sheet was filed against the accused
persons in absence of any valid sanction.

(IV) Whether the court concerned has
committed legal error in taking cognizance and
summoning the petitioners to face trial in
absence of valid / prior sanction under Section
197 of Cr.P.C.?

(V) Whether the firing in which one
person died and other sustained firearm injury
was justified?" (Considering issues no, IV & V
together)- The question as to whether the act
complained of is done in performance of duty
or in purported performance of duty is to be
determined by the competent authority and
not by the Court. The Legislature has
conferred "Absolute Power" on the statutory
authority to accord sanction or withhold the
same and the court has no role in this subject.
In such a situation, the court would not
proceed without sanction of the competent
statutory authority. The entire incident of firing
by the police personnel was only in order to
maintain law and order and while directing for
firing, the Competent Officer has followed the
procedure as prescribed in the Police Manual.
A change of opinion per se on the same
materials cannot be a ground for reviewing or
reconsidering the earlier order refusing to
grant sanction. However, in a case where fresh
materials
have
been
collected
by
the
investigating agency subsequent to the earlier
order and placed before the sanctioning
authority and on that basis, the matter is
reconsidered by the sanctioning authority and
in light of the fresh materials an opinion is
formed that sanction to prosecute the public
servant may be granted, there may not be any
impediment to adopt such course.

It is settled law that when the documents
relied on by the respondents demonstrate that
no prima facie offence is made out on the face
value of those materials, then the criminal
prosecution should not be allowed to continue
and, therefore, it should be quashed, and in
such a situation and circumstances, the
petitioner who had got a right under the
Constitution for the protection of their liberty
have rightly approached this Court and this
Court in these circumstances has no option left
2 All. Siya Ram Saran Aditya Vs The State of U.P. & Ors.
659
except to grant the relief as prayed by the
petitioner.

Impugned orders quashed.

Application u/s 482 Cr.P.C. allowed (E-3)

Case law relied upon/discussed: -

1. Matajog Dubey Vs H.C. Bhari AIR 1956 SC
44
2. Bakhshish Singh Brar Vs Smt. Gurmej Kaur
& anr. AIR 1988 SC 257
3. P.K. Pradhan Vs St. of Sikkim (2001) 6 SCC 704
4. Yusofalli Mulla Vs The King AIR 1949 PC 264
5. Basdeo Agarwalla Vs King Emperor AIR
1945 FC 16
6. Budha Mal Vs St. of Delhi [Criminal Appeal
No.17 of 1952 disposed of on 3/10/1952]
7. General Officer Commanding, Rashtriya
Rifles Vs C.B.I. & anr. (2012) 6 SCC 228
8. Punj. Vs Mohd. Iqbal Bhatti (2009) 17 SCC
92
(Delivered by Hon'ble Chandra Dhari
Singh, J.)

1. By means of Criminal Misc. Case
No.3855 of 2013 filed under Section 482
of Criminal Procedure Code (in short
"Cr.P.C."), the petitioner Siya Ram Saran
Aditya has challenged the order dated
16.08.2013 passed in Criminal Revision
No.164 of 2012 by the Additional
Sessions Judge/ Special Judge (SC/ ST
Act), Lucknow, whereby the criminal
revision preferred by the petitioner has
been dismissed affirming the order
26.03.2012 passed in Case No.3/ 12, R.C.
No.7(S)/ 2008, under Sections 147, 148,
302, 307, 342, 504, 506 IPC, Police
Station CBI (ACB), Lucknow by the
Special
Judicial
Magistrate
(CBI),
Lucknow by which the protest petition
filed by Sri Ram Gopal (complainant) was
accepted and summoned the petitioner
along with other co-accused persons
under Sections 34, 304(2) and Section
326 IPC.

2. Petitioners of Criminal Misc.
Case No.5430 of 2013 filed under Section
482 of Cr.P.C. have also prayed for
quashing of the order dated 26.03.2012,
whereby they have been summoned under
the said sections by the learned special
Judicial Magistrate (CBI), Lucknow.

3. As common question of law and
facts arise in both these petitions filed
under Section 482 of Cr.P.C. and arises
out of common impugned judgment and
order, therefore, both the petitions are
being decided together by this common
judgment and order.

4. In the year 2007, the then
Government had put a ban on the
Students' Union Elections in the entire
State of U.P. On 08.01.2008, a protest
against ban had been started by a Political
Party on the Foundation Day Function of
Jai
Narain
Post
Graduate
College,
Lucknow
under
the
supervision
of
Political Party's Youth Wing-Samajwadi
Chhatrasabha. The Police Authorities
after
taking
into
consideration
the
aggressiveness of the protesters started
Lathi charge and as a result whereof, one
of the leaders, namely, Sunil Singh and
some others were received injuries and
they were admitted in the Hospital. Some
other protesters were arrested and sent to
jail.

5. After the aforesaid incident in
order to protest Sri Shiv Pal Singh Yadav
660 INDIAN LAW REPORTS ALLAHABAD SERIES
(Ex-Minister) and Sri Akhilesh Yadav
(Ex-Chief Minister) along with other
party members sat on Dharna in front of
the office of the Superintendent of Police,
Lucknow on the same day i.e. 08.01.2008.
On the very next day, on 09.01.2008, a
news item was flashed in print and
electronic media with regard to pushing
Sri Shiv Pal Singh Yadav in a van and
slapping him by the police personnel.
Thereafter, Political Party had announced
a massive protest across the State on
09.01.2008 to register their anger against
the
alleged
police
highhandedness
including the alleged misbehave with Sri
Shiv Pal Singh Yadav.

6. Sri Syed Mohammad Abbas the
then Station Officer, Police Station Saifai,
District
Etawah
had
received
an
information with regard to blockage of
road before the Chaudhary Charan Singh
P.G. College, Hewra which resulted into a
heavy traffic jam. The Station Officer
along with other police personnel reached
there and found that about 400-500
students and public persons blocked the
road. The Station Officer, Police Station,
Saifai while trying to convince the
students and controlled the situation, the
Additional Superintendent of Police, Sri
Ram Pal Gautam along with other
personnel reached there and tried to
pacify the matter but the students instead
of stopping Dharna started abusing and
pelting stones on the police party. The
Senior Superintendent of Police also
reached at the place of Dharna and asked
the unlawful assembly to vacate the site
but they did not pay any heed to the
request of the then Senior Superintendent
of Police and started firing on the police
personnel. It is said that in self defence
and since no other effective option left,
the police force had also fired and as a
result whereof, two persons were received
injuries on their persons in which one of
the injured, namely, Mukesh had died.

7. Sri Syed Mohammad Abbas,
Station Officer, Police Station Saifai,
District Etawah had lodged a first
information report in Case Crime No.01
of 2008, under Sections 147, 148, 149,
342, 504, 336, 307, 353, 332, 427, 435,
504 IPC and Section 7 of the Criminal
Law (Amendment) Act and in Crime
No.02 of 2008, under Sections 25/ 27 of
the Arms Act and arrest several persons
who were the members of unlawful
assembly.

8. After concluding investigation,
the Investigating Officer had submitted
charge-sheet on 19.02.2008 in Case
Crime No.01 of 2008 against 20 persons
upon which the learned Magistrate had
taken cognizance vide orders dated
01.03.2008 and summoned the accused
persons. In the aforesaid incident, a
magisterial inquiry was also conducted
and in the magisterial inquiry, it was
found that none of the police officials
were responsible for the said incident.

9. The Complainant Sri Ram Gopal
had filed an application under Section
156(3) of Cr.P.C. with the allegation that
on 09.01.2008 at about 11:30 A.M., the
petitioners Siya Ram Saran Aditya posted
as Senior Superintendent of Police along
with Additional Superintendent of Police
Sri Ram Pal Gautam, Head Constable
Malkhan Singh, Constable Rajiv Dubey,
Constable
Shri
Krishna
Saini
and
Constable Sanjiv Kumar Gautam along
with others had entered into the premises
of the College and had taken away some
of the students. It is also alleged that on
protest made by the student, the Senior
2 All. Siya Ram Saran Aditya Vs The State of U.P. & Ors.
661
Superintendent
of
Police
and
the
Additional
Superintendent
of
Police
started abusing and exhorted the police
personnel to fire, as a result whereof,
three students, namely, Mukesh, Avnish
and Sunil had suffered firearm injuries.

10. The aforesaid application under
Section 156(3) of Cr.P.C. filed by Sri
Ram Gopal was allowed and an FIR was
registered as Case Crime No.1-B of 2008,
under Sections 147, 148, 149, 302, 307,
342, 506, 504 IPC on 01.03.2008. After
concluding
investigation,
the
Investigating Officer had submitted final
report, against which, complainant Ram
Gopal had approached this Court at
Allahabad by way of filing Criminal
Misc. Writ Petition No.6589 of 2008. The
Co-ordinate Bench of this Court vide an
ad-interim order dated 11.11.2008 had
directed
for
entrustment
of
the
investigation to the Central Bureau of
Investigation with a further direction to
transfer the Senior Superintendent of
Police and the Additional Superintendent
of Police from Etawah. It had also been
directed that during the course of
investigation, the Officers named in the
FIR shall not be arrested. The said writ
petition was dismissed for want of
prosecution vide order dated 29.09.2010.

11. In compliance of the direction of
this Court, the Central Bureau of
Investigation had registered a formal case
as R.C. No.7(S) of 2008 and applied for
sanction under Section 197 of Cr.P.C.
which
was
refused
by
the
State
Government vide order dated 03.12.2010.
Thereafter, after completing investigation,
the Central Bureau of Investigation had
submitted its Closure Report under
Section 173 of Cr.P.C. on 24.12.2010 in
the court concerned and prayed for
acceptance of the same. Against the
Closure Report, the Complainant Ram
Gopal has submitted an objection on
19.04.2011 with a prayer to reject the
closure report and summoned the accused
persons.
The
learned
Magistrate
concerned after considering the reply
submitted by the Central Bureau of
Investigation and the objection of the
complainant, vide impugned order dated
26.03.2012, summoned the petitioners as
accused for the offences punishable under
Section 34, 304(2), 326 IPC. The order
dated 26.03.2012 had been challenged by
the petitioner Siya Ram Saran Aditya in
Criminal Revision No.164 of 2012 before
the learned Sessions Judge, which had
been dismissed vide impugned order
dated
06.08.2013
by
the
learned
Additional Sessions Judge/ Special Judge
(SC/ ST Act), Lucknow. In the meantime,
vide order dated 31.08.2012, the State
Government has granted sanction under
Section 197 of Cr.P.C. to prosecute the
petitioners and other persons.

12. Learned Counsel for petitioners
have submitted that the Central Bureau of
Investigation after registering the case had
applied for sanction against the petitioners
but the same had been refused by the
Government.
Thereafter,
the
Central
Bureau of Investigation filed its closure
report before the concerned Magistrate. In
the meantime, the Government has been
changed due to fresh election and the
matter was again put up before the State
Government
for
sanction
of
the
prosecution without placing any fresh
material. The State Government having
found that as the learned Magistrate has
already taken cognizance in the matter, so
there is no need to grant sanction but it
has also been stated that in order to avoid
any technicality in the progress of trial, it
662 INDIAN LAW REPORTS ALLAHABAD SERIES
would be appropriate to grant sanction for
prosecution
to
the
petitioners
and
accordingly,
the
sanction
has
been
granted, which is not permissible in the
eyes of law as the prosecution has failed
to place any fresh material.

13. It has further been submitted by
learned Counsel for the petitioners that
once the sanction for prosecution under
Section 197 of Cr.P.C. has been refused,
the subsequent sanction might have not
been granted by the State Government on
the same material which were produced
before the Sanctioning Authority, as such
the subsequent sanction dated 31.08.2012
is nothing but only to harass the
petitioners. In support of his submissions,
learned Counsel for the petitioners have
relied upon the judgment rendered by the
Hon'ble Supreme Court in the case of
State of Himachal Pradesh vs. Nishant
Sareen; (2010) 14 SCC 527, in which it
has been held by the Apex Court that
where, after the refusal of the sanction
once, if no material was produced for the
second sanction, it ought to
have
challenged the order of the Sanctioning
Authority but that was not done. Learned
Counsel have further placed reliance on
the judgment rendered by the Apex Court
in the case of State of Army Head
Quarter vs. CBI; (2012) 6 SCC 228, in
which it has been held by the Apex Court
that the question as to whether the act
complained off, is done in performance of
the duty or in purported performance of
the duty is to be determined by the
competent authority and not by the Court.
The legislature has conferred the absolute
power on the statutory authority to accord
sanction or withhold the same and the
Court has no role in this subject. In such a
situation, the court would not proceed in
absence of prosecution sanction, and
therefore, the order passed by the learned
Magistrate concerned is liable to be
quashed.

14. It has been contended by learned
Counsel for petitioners that the order
passed by the State Government refusing
to accord sanction was not challenged
either
by
the
Central
Bureau
of
Investigation or by the complainant Ram
Gopal before any forum or before any
court of law, therefore, the subsequent
sanction order passed by the State
Government in absence of new material is
illegal and arbitrary. Learned Magistrate
failed to consider the provisions of
Section 132 of Cr.P.C. which provides
protection against the prosecution.

15. Per contra, the learned Counsel
appearing on behalf of the Central Bureau
of Investigation has vehemently opposed
the submissions made by learned Counsel
for petitioners and has submitted that the
Central Bureau of Investigation has
concluded the investigation in most
scientific
and
objective
manner
by
engaging experts of Central Forensic
Science Laboratory, New Delhi and All
India Institute of Medical Sciences, New
Delhi to arrive at the truth vis-a-vis
allegations made against the petitioners. It
is further submitted that CBI conducted
the investigation without favouring to any
person and without being influenced by
anyone. He has further submitted that the
order passed by the learned Judicial
Magistrate taking cognizance of the
offence as well as the order of the learned
Additional Sessions Judge/ Special Judge
(S.C./ S.T. Act), Lucknow dated 6.8.2013
upholding the cognizance taken by the
learned
Judicial
Magistrate
for
the
offences, is according to the judicial
process of law.
2 All. Siya Ram Saran Aditya Vs The State of U.P. & Ors.
663

16. Learned Counsel for the
complainant
has
submitted
that
on
09.01.2008, while the complainant was
discharging his duties in the College on
09.01.2008 at about 11:30 AM, the
petitioners
along
with
other
police
personnel entered into the premises of the
College and taking away the innocent
students forcibly. The other students of
the College protested against the act of
the police personnel and after hearing the
hue and cry of the students, the
complainant and the Principal of the
College also came out and they also
started protest. The petitioners instigated
other police personnel to kill the students,
as a result whereby, three students
namely, Mukesh Singh, Avnish and Sunil
had sustained fire armed injuries and out
of which, Mukesh Singh succumbed to
the injuries.

17. It has further been submitted by
learned Counsel for the complainant that
after investigation, the Central Bureau of
Investigation has found that the accused
persons have committed serious offence
under sections 34, 304(ii) IPC and section
326 IPC. He has again submitted that in
the
instant
case,
the
sanction
for
prosecution is not required as the killing
of the innocent person cannot be said to
be anyway connected with the discharge
of official duty.

18. It has again been submitted by
the learned Counsel for the complainant
that in the instant case, the Central Bureau
of Investigation was not supposed to ask
sanction for prosecution as the offence
committed by the petitioner and other
accused persons cannot be said to be
connected with the discharge of official
duty. Further, since the petition before the
Hon'ble Court was kept pending for
monitoring, there was no need for
obtaining sanction and also, the petitioner
may raise the said question of sanction
during the trial. So far as section 132
Cr.P.C. is concerned, it falls within
Chapter-X of Cr.P.C. and provides for
Maintenance
of
Public
Order
and
Tranquility. It is submitted that the
Section 132 of Cr.P.C. comes when
previous sections of the aforesaid Chapter
i.e. Sections 129 to 130 Cr.P.C. are
applicable.

19. It has also been submitted by
learned Counsel for the complainant that a
perusal of the order dated 31.08.2012
shows that after considering the entire
material in detail and examining the
matter
afresh
as
also
subsequent
developments,
the
sanction
for
prosecution has been granted. It has
consistently
been
held
by
Hon'ble
Supreme Court as well as this Court that
litigants are supposed to approach the
Court with clean hands and if a litigant
does not come to the court with clean
hands is not entitled for any discretionary
relief from any of the court.

20. I have heard learned Counsel for
the parties and perused the record.

21. The following issues are
required to be adjudicated while deciding
the instant petition under Section 482 of
Cr.P.C.:

"(I). Whether the act done by
petitioners in the present case was within
the official capacity in discharge of their
official duty?

(II) Whether prior sanction under
Section 197 of Cr.P.C. is necessary in the
present case before prosecuting the
petitioners?
664 INDIAN LAW REPORTS ALLAHABAD SERIES

(III) Whether the charge-sheet could
be submitted against the petitioners
without prior sanction under Section 197
of Cr.P.C.?

(IV) Whether the court concerned
has committed legal error in taking
cognizance
and
summoning
the
petitioners to face trial in absence of valid
/ prior sanction under Section 197 of
Cr.P.C.?

(V) Whether the firing in which one
person died and other sustained firearm
injury was justified?"

ISSUE NO.I

22. The situation was such that if the
police had not opened fire, there was
apprehension of death or grievous injury to
the police personnel. It was in the exercise of
the right of private defence falling under
Section 99 of the Indian Penal Code. In such
an event, the question is whether the act of
petitioners was referable to the delegation of
sovereign power of the State is available. For
dealing of this aspect, it would be useful to
refer certain statutory provisions which
governs maintenance of public order and
tranquility. Chapter X of Cr.P.C. has laid
down the procedure that is required to be
followed in the dispersal of unlawful
assemblies either by the use of civil force or
armed force. Section 129 reads thus:

"129(1). Any Executive Magistrate or
officer in charge of police station or, in
the absence of such officer in charge, any
police officer, not below the rank of a
sub-inspector,
may
command
any
unlawful assembly, or any assembly of
five or more persons likely to cause a
disturbance of the public peace, to
disperse; and it shall thereupon be the
duty of the members of such assembly to
disperse accordingly.

(2) If, upon being so commanded, any
such assembly does not disperse, or if,
without being so commanded, it conducts
itself in such a manner as to show a
determination not to disperse, any Executive
Magistrate or police officer referred to in
sub-section (1), may proceed to disperse
such assembly by force, and may require the
assistance of any male person, not being an
officer or member of the armed forces and
acting as such, for the purpose of dispersing
such assembly, and, if necessary, arresting
and confining the persons who form part of
it, in order to disperse such assembly or that
they may be punished according to law."

23. Sections 130 to 132 relate to the
use of armed forces to disperse the
unlawful assembly which are not material
for our purpose as the services of the
armed forces were not requisitioned.
Section 132 deals with protection against
prosecution for acts done under the
aforesaid Sections. Under sub-section (1)
of Section 132, no prosecution against
any person for any act purporting to be
done under Sections 129, 130 or 131 shall
be instituted in any Criminal Court
excepting with the sanction of the Central
Government where such person is an
officer or member of the armed forces; or
with the sanction of the State Government
in any other case. Similarly, no Executive
Magistrate or Police Officer acting under
any of the said Sections in good faith or
no person doing any act in good faith in
compliance with a requisition under
Section 129 or Section 130 shall be
deemed to have thereby committed an
offence (Section 132 (2)(a) and (b)). Subsection (3) of Section 132 defines "armed
forces" to mean the military, naval and air
forces operating as land forces and
includes any other armed forces of the
Union so operating. Suffice it to note that
2 All. Siya Ram Saran Aditya Vs The State of U.P. & Ors.
665
Section 129 is attracted in the instant case
and any Executive Magistrate or officer
in-charge of the Police Station or, in the
absence of such officer in charge, any
police officer not below the rank of a SubInspector may command any unlawful
assembly to disperse. If such a command
given under sub-section (1) is not obeyed,
then such force as may be necessary may
be used to disperse the assembly.

24. These are some of the salutary
instructions given to the police officers
and men who are called upon to control
riotous mobs and to disperse them.
Section 129 of Cr.P.C. makes it amply
clear that only an Executive Magistrate or
Officer in charge of a Police Station or in
the absence of such Officer in charge, any
police officer not below the rank of a SubInspector has the power to command an
unlawful assembly to disperse, it is clear
from these various safeguards against
reckless use of force that officers with
some responsibility should command use
of force including one of firing to disperse
an unlawful assembly.

25. In the instant case, the Senior
Superintendent
of
Police
and
the
Additional Superintendent of Police along
with others are present on the spot and the
firing was opened by the police personnel
on the direction of the petitioner Siya
Ram Saran Aditya as it was necessary to
take an action or to open a fire for the
disbursal of the unlawful assembly. It is
abundantly clear from the facts and
circumstances of the case that opening of
fire was on the direction of the petitioner
Siya Ram Saran Aditya, which is not
below the rank of Inspector, after
examining the situation on the spot. The
facts of the case clearly shows that the
petitioner Siya Ram Saran Aditya who
was the then Senior Superintendent of
Police are present on the spot and took
decision to open fire and accordingly
firing was done after examining the
situation and necessity of the said act.

26. For examining Issue No.I, there
must be a reasonable connection between
the act and the official duty. It does not
matter even if the act exceeds what is
strictly necessary for the discharge of the
duty. What I must find out is whether the
act and the official duty are so interrelated
that one can postulate reasonably that it
was done by the accused in the
performance of the official duty, though
possibly in excess of the needs and
requirements of the situation.

27. The act must fall within the
scope and range of the official duties of
the public servant concerned. There
cannot be any universal rule to determine
whether there is a reasonable connection
between the act done and the official duty,
nor is it possible to lay down any such
rule. One safe and sure test in this regard
would be to consider, if the omission or
neglect on the part of the public servant to
commit the act complained of could have
made him answerable for a charge of
dereliction of his official duty. If the
answer to this question is in the
affirmative, it may be said that such act
was committed by the public servant
while acting in the discharge of his
official duty and there was every
connection with the act complained of and
the official duty of the public servant.

28. It is necessary to protect the
public servants in the discharge of their
duties. In the facts and circumstances of
each case protection of public officers and
public servants functioning in discharge
666 INDIAN LAW REPORTS ALLAHABAD SERIES
of official duties and protection of private
citizens have to be balanced by finding
cut as to what extent and how far is a
public servant working in discharge of his
duties or purported to discharge of his
duties, and whether the public servant has
exceeded his limit. It is true that Section
197 of Cr.P.C. states that no cognizance
can be taken and even after cognizance
having been taken if facts come to light
that the acts complained of were done in
the discharge of the official duties then
the trial may have to be stayed unless
sanction is obtained. The protection given
under Section 197 of Cr.P.C. is to protect
responsible public servants against the
institution of possibly vexatious criminal
proceedings for offences alleged to have
been committed by them while they are
acting or purporting to act as public
servants. The policy of the legislature is to
afford adequate protection to public
servants to ensure that they are not
prosecuted for anything done by them in
the discharge of their official duties
without reasonable cause, and if sanction
is granted, to confer on the Government,
if they choose to exercise it, complete
control of the prosecution.

29. To what extent an act or
omission performed by a public servant in
discharge of his duty can be deemed to be
official was explained by the Supreme
Court in the case of Matajog Dubey Vs.
H.C. Bhari; AIR 1956 SC 44, which is as
under:

"The offence alleged to have been
committed must have something to do, or
must be related in some manner with the
discharge of official duty ... there must be
a reasonable connection between the act
and the discharge of official duty; the act
must bear such relation to the duty that
the accused could lay a reasonable
(claim) but not a pretended or fanciful
claim, that he did it in the course of the
performance of his duty."

30. The nexus between the discharge
of the public duty and the offending act or
omission must be inseparable. The
obvious reason is to balance the public
good and efficiency of the performance of
the public duty by a public servant and the
legitimate and bona fide grievance of an
aggrieved
person.
Sometimes
while
discharging or purported to discharge the
public duty, the officer may honestly
exceed his limit or pass an order or take a
decision which may later be found to be
illegal, etc. Therefore, the prior sanction
by the appropriate Government is an
assurance to a public servant to discharge
his official functions diligently, efficiently
and honestly without fear or favour,
without having haunt of later harassment
and victimization, so that he would serve
his best in the interest of the public.

31. The offending act must be
integrally connected with the discharge of
duty and should not be fanciful or
pretended. If the act complained of is
directly, and inextricably connected with the
official
duty,
though
it
was
done
negligently, or in dereliction of duty or in
excess thereof, Section 197 and similar
provisions operate as a canopy against
malicious, vexatious or frivolous accusation
or prosecution at the hands of the aggrieved
persons. It is well settled law that public
servant can only be said to act or purported
to act in the discharge of his official duty if
his act or omission is such as to lie within
the scope of his official duty.

32. In the instant case, the petitioner
Siya Ram Saran Aditya along with other
2 All. Siya Ram Saran Aditya Vs The State of U.P. & Ors.
667
petitioners, who was the then Senior
Superintendent of Police, had reached at
the place where the students and other
people was sitting on Dharna and blocked
the road. The petitioner tried to convinced
them to vacate the road but the crowed
stood aggravated and started pelting
stones upon the police personnel. Some of
them opened fire on the police personnel
while they are discharging their official
duty. In order to maintain law and order
and on the defence, the police personnel
on the direction of the petitioner Siya
Ram Saran Aditya had also opened fire,
as a result whereof, one died and some
others are injured. It is crystal clear from
the facts stated above that the petitioners
were at the place of incident in his official
capacity and during that time he was the
Senior
Superintendent
of
Police,
therefore, being the senior most police
officer at the place of incident, it was the
duty of the petitioner Siya Ram Saran
Aditya to maintain law and order of the
said locality.

ISSUES NO.II & III

33. Whether court below has erred
grievously in taking cognizance of the
above case against the petitioners as the
opposite
parties/
prosecuting
agency
failed to obtain the sanction under Section
197 (1) of Cr.P.C. against the petitioners
who had nexus to official duty only in
complexity with their work as police
official. In the absence of the valid
sanction under Section 197 (1) of Cr.P.C.,
the case is void abinito.

34. Section 197 of Cr.P.C. reads as
follows:

"197. Prosecution of Judges and
public servants - (1) When any person
who is or was a Judge or Magistrate or a
public servant not removable from his
office save by or with the sanction of the
Government is accused of any offence
alleged to have been committed by him
while acting or purporting to act in the
discharge of his official duty, no Court
shall take cognizance of such offence
except with the previous sanction [save as
otherwise provided in the Lokpal and
Lokayuktas Act, 2013] -

(a) in the case of a person who is
employed or, as the case may be, was at
the time of commission of the alleged
offence employed, in connection with the
affairs of the Union, of the Central
Government;

(b) in the case of a person who is
employed or, as the case may be, was at
the time of commission of the alleged
offence employed, in connection with the
affairs
of
a
State,
of
the
State
Government:

[Provided that where the alleged
offence was committed by a person
referred to in clause (b) during the period
while a Proclamation issued under clause
(1) of Article 356 of the Constitution was
in force in a State, clause (b) will apply as
if for the expression "State Government"
occurring therein, the expression "Central
Government" were substituted.

[Explanation.-- For the removal of
doubts it is hereby declared that no
sanction shall be required in case of a
public servant accused of any offence
alleged to have been committed under
Section 166-A, Section 166-B, Section
354, Section 354-A, Section 354-B,
Section 354-C, Section 354-D, Section
370, Section 375, Section 376, Section
376-A, Section 376-C, Section 376-D or
Section 509 of the Indian Penal Code.]

(2). No Court shall take cognizance
of any offence alleged to have been
668 INDIAN LAW REPORTS ALLAHABAD SERIES
committed by any member of the Armed
Forces of the Union whole acting or
purporting to act in the discharge of his
official duty, except with the previous
sanction of the Central Government.

(3). The State Government may, by
notification, direct that the provisions of
sub-section (2) shall apply to such class
or category of the members of the Forces
charged with the maintenance of public
order as may be specified therein,
wherever they may be serving, and
thereupon the provisions of that subsection will apply as if for the expression
"Central Government" occurring therein,
the expression "State Government" were
substituted.

[(3-A)
Notwithstanding
anything
contained in sub-section (3), no Court
shall take cognizance of any offence,
alleged to have been committed by any
member of the Forces charged with the
maintenance of public order in a State
while acting or purporting to act in the
discharge of his official duty during the
period while a Proclamation issued under
clause
(1)
of
Article
356
of
the
Constitution was in force therein, except
with the previous sanction of the Central
Government.

(3-B). Notwithstanding anything to
the contrary contained in this Code or
any other law, it is hereby declared that
any sanction accorded by the State
Government or any cognizance taken by a
Court upon such sanction, during the
period commencing on the 20th day of
August, 1991 and ending with the date
immediately preceding the date on which
the
Code
of
Criminal
Procedure
(Amendment) Act, 1991, receives the
assent of the President, with respect to an
offence alleged to have been committed
during the period while a Proclamation
issued under clause (1) of Article 356 of
the Constitution was in force in the State,
shall be invalid and it shall be competent
for the Central Government in such
matter to accord sanction and for the
Court to take cognizance thereon.]
(4) The Central Government or the State
Government, as the case may be, may
determine the person by whom, the
manner in which, and the offence or
offences for which, the prosecution of
such Judge, Magistrate or public servant
is to be conducted, and may specify the
Court before which the trial is to be held."

35. The protection given under
Section 197 of Cr.P.C. is to protect
responsible public servants against the
institution of possibly vexatious criminal
proceedings for offences alleged to have
been committed by them while they are
acting or purporting to act as public
servants.

36. The applicability of Section 197
of Cr.P.C. needs careful consideration. In
Bakhshish Singh Brar Vs. Smt. Gurmej
Kaur and another; AIR 1988 SC 257, the
Hon'ble
Supreme
Court
while
emphasizing on the balance between
protection
to
the
officers
and
the
protection to the citizens observed as
follows:-