# OM PRAKASH & ORS v. STATE OF JHARKHAND THROUGH THE SECRETARY, DEPARTMENT OF HOME, RANCHl-1 & ANR

- **Citation:** [2012] 9 S.C.R. 125
- **Court:** Supreme Court of India
- **Decided:** 2012-09-26
- **Case number:** Criminal Appeal No. 1491 of 2012
- **Bench:** Aftab Alam, Ranjana Prakash Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/om-prakash-ors-v-state-of-jharkhand-through-the-secretary-department-of-home-28573
- **Pages:** 40

## Headnote

Code of Criminal Procedure, 1973:
A
B
c
ss. 482 and 197 - Complaint against police officials -
Alleging killing in fake encounter - Case of the accused/police
officials that encounter was genuine - FIR lodged by a citizen
against the miscreants including the deceased for threatening
him by firing at his house on the date of the encounter - One
0
of the accused/police officials also filing FIR giving account
of the encounter - NHRC in the complainant's complaint,
relying on CID inquiry, holding that encounter was genuine -
Magistrate taking cognizance of the case against the accused
and initiating criminal proceeding - Petition before High Court
E
for quashing criminal proceedings - Petition qua one of the
accused (police officer) quashed on the ground of absence
of sanction before prosecution - Not quashed in respect of
other officials (other than officers) on the ground that they did
not produce notification u/s. 197(3) Cr.P.C. to show that they
F
were protected against prosecution - Appeal by the
complainant as well as police officials (other than officers) -
Held The facts of the case show that it is not a case of false
encounter - The police officials were entitled to protection ul
s. 197 because the acts complained of are so integrally
connected with discharge of their official duty - Notification
G
dated 16. 5. 1980 issued by State of Bihar extends the
protection from prosecution to police personnel other than
officers also - The criminal proceedings initiated against the
police personnel is quashed.
125
H
126
SUPREME COURT REPORTS
·[2012] 9 S.C.R.
A
s. 482 - Power under - Exercise of - Held: The power ul
s. 482 to be exercised to prevent abuse of process of court,
and not to stifle legitimate prosecution.
s. 197 - Protection against prosecution - Availability -
B When - Held: The protection is available only when the
alleged act done by the public servant is reasonably
connected with discharge of his official duty - Acting in
excess of his duty will not be a sufficient ground to deprive
the public servant of the protection - Unless unimpeachable
evidence is on record to establish that the action of the public
C servant is indefensible, ma/a fide and vindicative, they cannot
be subjected to prosecution.
s. 197 - Protection against prosecution - Ascertainment
as to whether sanction uls. 197 is necessary- Held: Such a
D question can be ascertained at any stage of proceeding
depending on the nature of the case - Ascertainment of the
question at the very inception of the case on the basis of the
documents produced before the court is not barred.
E
A dealer in scrap, lodged an FIR on 1.7.2004 stating
therein that on that day some miscreants riding on motor
cycles fired at his office cum residence, threatening him
to yield to their ransom demand and fled away.
The DSP (respondent in Crl. Appeal No. 1492/12) also
F filed an FIR on 2.7.2004 stating that he received
information about the firing incident, the police party set
out to arrest the accused. They traced them and asked
them to surrender. The miscreants, instead, started firing
at the police. When the police retaliated, four of the
G miscreants were killed.
The appellant in Criminal Appeal No. 1492/12 filed a
complaint on 27. 7 .2004 against the police officials
(including the respondents in Criminal Appeal No. 1492/
H 12 and appellants in Criminal Appeal No. 1491/12)
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT, 127
DEPTT. OF HOME, RANCHl-1
alleging that on 1.7.2004 they killed his son (the
A
deceased) and three others in a fake encounter. The
Judicial Magistrate took cognizance of the offence
alleged in the complaint and issued process against the
accused. The complainant also filed a complaint
regarding this case with NHRC, who directed inquiry by
B
CID. The inquiry report concluded that the encounter was
genuine. NHRC also accepted the report.
The accused persons filed petition u/s. 482 Cr.P.C.
for quashing the criminal proceedings. High Court
allowed the petition o

## Text

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[2012] 9 S.C.R. 125
OM PRAKASH & ORS.
v.
STATE OF JHARKHAND THROUGH THE SECRETARY,
DEPARTMENT OF HOME, RANCHl-1 & ANR.
(Criminal Appeal No. 1491 of 2012 etc.)
SEPTEMBER 26, 2012
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]
Code of Criminal Procedure, 1973:
A
B
c
ss. 482 and 197 - Complaint against police officials -
Alleging killing in fake encounter - Case of the accused/police
officials that encounter was genuine - FIR lodged by a citizen
against the miscreants including the deceased for threatening
him by firing at his house on the date of the encounter - One
0
of the accused/police officials also filing FIR giving account
of the encounter - NHRC in the complainant's complaint,
relying on CID inquiry, holding that encounter was genuine -
Magistrate taking cognizance of the case against the accused
and initiating criminal proceeding - Petition before High Court
E
for quashing criminal proceedings - Petition qua one of the
accused (police officer) quashed on the ground of absence
of sanction before prosecution - Not quashed in respect of
other officials (other than officers) on the ground that they did
not produce notification u/s. 197(3) Cr.P.C. to show that they
F
were protected against prosecution - Appeal by the
complainant as well as police officials (other than officers) -
Held The facts of the case show that it is not a case of false
encounter - The police officials were entitled to protection ul
s. 197 because the acts complained of are so integrally
connected with discharge of their official duty - Notification
G
dated 16. 5. 1980 issued by State of Bihar extends the
protection from prosecution to police personnel other than
officers also - The criminal proceedings initiated against the
police personnel is quashed.
125
H
126
SUPREME COURT REPORTS
·[2012] 9 S.C.R.
A
s. 482 - Power under - Exercise of - Held: The power ul
s. 482 to be exercised to prevent abuse of process of court,
and not to stifle legitimate prosecution.
s. 197 - Protection against prosecution - Availability -
B When - Held: The protection is available only when the
alleged act done by the public servant is reasonably
connected with discharge of his official duty - Acting in
excess of his duty will not be a sufficient ground to deprive
the public servant of the protection - Unless unimpeachable
evidence is on record to establish that the action of the public
C servant is indefensible, ma/a fide and vindicative, they cannot
be subjected to prosecution.
s. 197 - Protection against prosecution - Ascertainment
as to whether sanction uls. 197 is necessary- Held: Such a
D question can be ascertained at any stage of proceeding
depending on the nature of the case - Ascertainment of the
question at the very inception of the case on the basis of the
documents produced before the court is not barred.
E
A dealer in scrap, lodged an FIR on 1.7.2004 stating
therein that on that day some miscreants riding on motor
cycles fired at his office cum residence, threatening him
to yield to their ransom demand and fled away.
The DSP (respondent in Crl. Appeal No. 1492/12) also
F filed an FIR on 2.7.2004 stating that he received
information about the firing incident, the police party set
out to arrest the accused. They traced them and asked
them to surrender. The miscreants, instead, started firing
at the police. When the police retaliated, four of the
G miscreants were killed.
The appellant in Criminal Appeal No. 1492/12 filed a
complaint on 27. 7 .2004 against the police officials
(including the respondents in Criminal Appeal No. 1492/
H 12 and appellants in Criminal Appeal No. 1491/12)
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT, 127
DEPTT. OF HOME, RANCHl-1
alleging that on 1.7.2004 they killed his son (the
A
deceased) and three others in a fake encounter. The
Judicial Magistrate took cognizance of the offence
alleged in the complaint and issued process against the
accused. The complainant also filed a complaint
regarding this case with NHRC, who directed inquiry by
B
CID. The inquiry report concluded that the encounter was
genuine. NHRC also accepted the report.
The accused persons filed petition u/s. 482 Cr.P.C.
for quashing the criminal proceedings. High Court
allowed the petition of the accused-police officer C
(respondent in Crl.A.No. 1492) on the ground that
sanction required u/s. 197 Cr.P. C. was not obtained and
the criminal proceedings against him was quashed. High
Court dismissed the petition of other police personnel
(other than police officer), on the ground that no D
notification u/s. 197 (3) Cr.P.C. was produced to show
that they were protected against prosecution in respect
of any offence alleged to have been committed while
acting or purporting to act in discharge of their official
duties. Hence the present appeals by the complainant as
E
well as police officials.
The complainant contended that his son was killed
in a fake encounter which is apparentJrom the fact that
injury was on his chest indicating that firing was done
from a close range and that the nails of the deceased
were blackened; that the post-mortem was not
videographed; that the dead body was not handed over
to them; that police diaries did not show movements of
F
the police during the period of encounter; that none of
the members of the police party received injuries; that G
there was no credible private witness; that as the police
personnel were guilty of cold-blooded murder, sanction
before prosecution u/s. 197 Cr.P.C. was not required; and
that the question regarding the false encounter must be
considered only on the basis of complaint and the
H
128
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A testimonies, before the charge is framed and the material
produced by the court should not be taken into account
when there is impeachable evidence against the police
officials.
8
Dismissing the appeal filed by the complainant and
allowing the appeal filed by the police officials, the Court
HELD: 1. The reason given by the High Court for not
quashing proceedings against appellants police-officials
namely that no notification under Section 197(3) Cr.P.C.
C was produced by them protecting them from prosecution
in respect of any offence alleged to have been committed
while acting or purporting to act in discharge of their
official duties, is incorrect. The Notification dated 16/5/
1980 issued by the State of Bihar extends the protection
D of sub-section (2) of Section 197 Cr.P.C. to all the
members of the police force as it includes both officers
and men. [Para 8] (139-8-D]
2.1. It is not possible to infer that post-mortem was
E not videographed because the police wanted to suppress
something. The Magistrate conducted the inquest. The
CID fully investigated and submitted its report stating that
it was a genuine encounter. NHRC was also satisfied
with the postmortem. Even this Court having
F independently examined the relevant documents, like
FIRs, postmortem notes, inquest report, seizure memo
and extracts of FSL report, is of the view that this is not
a case of false encounter. Therefore the case of the
complainant that the police are guilty of killing deceased
in cold blood in fake encounter, is rejected. [Para 28]
G (155-C-D]
2.2. The seizure memo, indicates that the criminals
had used motor cycles and they were armed with deadly
fire-arms. Three of the motor cycles were found at the
H scene of offence. The fire-arms used by the criminals
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 129
DEPTI. OF HOME, RANCHl-1
were of foreign make. There is no reason to doubt the
A
veracity of this seizure memo because it is difficult for the
police to concoct such a scene and plant such weapons.
[Para 16) [147-A-B]
B
2.3. From the two FIRs, it is clear that the criminals
riding on the motor cycles armed with deadly fire-arms
had attacked the house of businessman, who lodged a
complaint. Upon receiving information, the police
machinery had swung into action. Dy.S.P. (respondentaccused) left his office along with his team to trace the
criminals. They could trace the criminals. They asked the
C
criminals to surrender. The criminals instead of
surrendering fired at them. The police had to launch a
counter attack to save themselves and also to nab the
criminals, which was their legal duty and in this counter
attack, four of the criminals received bullet injuries and
D
succumbed to those injuries. The death of four criminals
in the firing was preceded by an attack by them on
businessman's house and also an attack on the police
personnel. There is no doubt that the criminals had set
out on a mission to attack the house of the businessman
so as to recover ransom. From the weapons found lying
at the scene of occurrence, it appears that the criminals
had taken to the life of crime and were not novices. The
past record of the criminals support this conclusion. [Para
E
17] [147-C-F)
F
2.4. NHRC on complaint regarding this case directed
CID to conduct an inquiry. CID conducted the inquiry and
submitted his report. From the report, it appears that the
Inquiry Officer recorded the statement of the brother of G
the deceased, two independent witnesses who have
confirmed that the firing incident did take place. The
Inquiry Officer also recorded the statements of witnesses
to the seizure memo. The report further states that
Magistrate (Law & Order) came to the spot and prepared
the inquest report. After considering inquest report,
H
130
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A postmortem report, forensic laboratory report, the
statements of independent witnesses, the statement of
the businessman whose house was attacked, the
statement of the brother of the deceased and the
antecedents of the deceased and other attendant
B circumstances, the report concluded that the encounter
was genuine. There is no dispute about the fact that
NHRC accepted this report and also came to a
conclusion that it was not a case of fake encounter. [Para
21] [151-0, E-F; 152-D-E]
c
2.5. From the affidavit filed by Dy. S.P. and
documents annexed to it, it is clear that on the written
request of the complainant's son-in-law, the dead body
of the deceased was handed over to him in the presence
of brothers of the deceased. The body was finally
D cremated by members of the family of the deceased. The
application made by the brother-in-law of the deceased
is counter-signed by the brothers of the deceased. A
receipt to that effect was given by him to the police and
the same is counter-signed by brother of the deceased.
E There is on record a declaration made by the relative of
the deceased that the deceased was cremated. The
declaration is made on the certificate issued by the Ghat.
[Para 22] [152-G-H; 153-A-B]
F
2.6. The police cannot be said to have made an
attempt to involve the deceased in a Case of the year
1994. It is not the case of the police that deceased was
involved in any case of the year 1994. It is the case of the
police that he was not involved in that case. Perhaps, the
G information was related to some other person or the
information was incorrect. [Para 23] [153-F-D-E]
H
2.7. The plea that no blood stains were found at the
site of occurrence when PUCL visited the same, has no
merit. There is on record the detailed seizure memo which
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 131
DEPTT. OF HOME, RANCHl-1
speaks about the recovery of blood stained soil. The
A
inquest report, which is reproduced in the report of the
CID confirms that the deceased had received bleeding
injuries. The PUCL visited the scene of occurrence after
four days in rainy season. Therefore, assuming blood
stains were not found at the scene of occurrence after
B
four days, that does not disprove the occurrence. [Para
24] [153-H; 154-A]
2.8. It is not correct to say that police movements
were not recorded in police diaries. Extracts of police C
station diary of the police station concerned, show the
police movements of the relevant period. [Para 25] [154C]
2.9. The doctors' statements have been reproduced
in the CID report. It is stated by the doctors that there was
D
no blackening or charring suggesting that the deceased
were shot at from a close range. The postmortem report
also does not show that deceased had received chest
injuries. [Para 26] [154-D]
2.10. It is true that the police personnel did not
receive any bullet injuries. However, the police vehicle
was hit by a bullet. From this, it cannot be said that no
such incident had taken place. [Para 26] [154-E]
E
2.11. It is not correct to say that there are no
F
independent eye-witnesses supporting the version of
police. Statements of two witnesses have been recorded
under Section 164 Cr.P.C. This is evident from the CID
report. [Para 26] [154-F]
G
2.12. There is a reasonable explanation as regards
filing of all the challans in respect of the deceased on the
same day. The deceased was wanted in the cases of 2002
and 2003. He was absconding when he died. A report
was required to be filed to inform the court that he was
H
132
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A dead. It is the case of the police that in these
circumstances three challans were prepared and filed on
the same day. These are not challans but final forms.
Therefore, it cannot be said that this was done purposely
with ma/a fide intention to create record against the
B deceased. [Para 27] [154-G-H; 155-A]
3.1. The true test as to whether a public servant was
acting or purporting to act in discharge of his duties
would be whetf:ler the act complained of was directly
connected with.his official duties or it was done in the
C discharge of his official duties or it was so integrally
connected with or attached to his office as to be
inseparable from it. [Para 29] [155-E]
K. Satwant Singh v. The State of Punjab 1960 (2) SCR
o 89 - relied on.
3.2. The protection given under Section 197 Cr.P.C.
has certain limits and is available only when the alleged
act done by the public servant is reasonably connected
with the discharge of his official duty and is not merely a
E cloak for doing the objectionable act. If in doing his official
duty, he acted in excess of his duty, but there is a
reasonable connection between the act and the
performance of the official duty, the excess will not be a
sufficient ground to deprive the public servant of the
F protection. [Para 29] [155-F-G]
State of Orissa through Kumar Raghvendra Singh and
. Ors. v. Ganesh Chandra Jew. (2004) 8 SCC 40: 2004 (3)
SCR 504 - relied on.
G
3.3. If the above tests are applied to the facts of the
present case, the police must get protection given under
Section 197 Cr.P.C. because the acts complained of are
so integrally connected with or attached to their office as
to be inseparable from it. It cannot be concluded that the
H protection granted under Section 197 Cr.P.C. is used by
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT, 133
DEPTT OF HOME, RANCHl-1
the police personnel in this case as a cloak for killing the
A
deceased in cold blood. [Para 29] [155-G-H; 156-A]
3.4. It is not the duty of the police officers to kill the
accused. merely because he is a dreaded criminal.
Undoubtedly, the police have to arrest the accused and
8
put them up for trial. This court has repeatedly
admonished trigger happy police personnel, who
liquidate criminals and project the incident as an
encounter. Such killings must be deprecated. They
amount to State sponsored terrorism. But, one cannot be
C
oblivious of the fact that there are cases where the police,
who are performing their duty, are attacked and killed.
There is a rise in such incidents and judicial notice must
be taken of this fact. In such circumstances, while the
police have to do their legal duty of arresting the
criminals, they have also to protect themselves.
D
Requirement of sanction to prosecute affords protection
to the policemen, who are sometimes required to take
drastic action against criminals to protect life and
property of the people and to protect themselves against
attack. Unless unimpeachable evidence is on record to
E
establish that their action is indefensible, ma/a fide and
vindictive, they cannot be subjected to prosecution.
Sanction must be a precondition to their prosecution. It
affords necessary protection to such police personnel.
No inference can be drawn in this case that the police
F
action is indefensible or vindictive or that the police were
not acting in discharge of their official duty. [Paras 38 and
39] [163-B-G]
4. Whether sanction is necessary or not has to be
G
decided from stage to stage. This question may arise at
any stage of the proceeding. In a given case, it may arise
at the inception. There may be unassailable and
unimpeachable circumstances on record which may
establish at the outset that the police officer or public
H
134
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A servant was acting in performance of his official duty and
is entitled to protection given under Section 197 Cr.P.C.
It is not possible to hold that in such a case, the court
cannot look into any documents produced by the
accused or the concerned public servant at the
B inception. The nature of the complaint may have to be
kept in mind. It must be remembered that previous
sanction is a precondition for taking cognizance of the
offence and, therefore, there is no requirement that the
accused must wait till the charges are framed to raise this
c plea. [Para 37) [162-E-G]
Matajog Dobey v. H.C. Bhari (1955) 2 SCR 925 -
followed.
Sankaran Moitra v. Sadhna Das and Anr. (2006) 4 SCC
D 584: 2006 (3) SCR 305 - relied on.
Raj Kishor Roy v. Kam/eshwar Pandey and Anr. (2002)
6 SCC 543; Pukhraj v. State of Rajasthan and Anr. 1974 (1)
SCR 559; Nagraj v. State of Mysore AIR 1964 SC 269: 1964
E
SCR 671 - distinguished.
Dr. Hori Ram Singh v. Empower AIR 1939 FC 43; Abdul
Wahab Ansari v. State of Bihar and Anr. (2000) 8 SCC 500:
2000 (3) Suppl. SCR 747 - referred to.
F
5. Though the power under Section 482 Cr.P.C.
should be used sparingly and with circumspection to
prevent abuse of process of court but not to stifle
legitimate prosecution, but, if it appears to the trained
judicial mind that continuation of a prosecution would
G lead to abuse of process of court, the power under
Section 482 of the Code must be exercised and
proceedings must be quashed. The instant case is one
of such cases where the proceedings initiated against the
police personnel need to be quashed. [Paras 39) [163-H;
H 164-A-B]
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT, 135
DEPTI. OF HOME, RANCHl-1
Zandu Pharmaceutical Works Ltd. and Ors. v. Mohd.
Sharaful Haque and Anr. (2005) 1 SCC 122: 2004 (5) Suppl.
SCR 790 - referred to.
Case Law Reference:
1960 (2) SCR 89
Relied on
Para 29
2004 (3) SCR 504
Relied on
Para 29
AIR 1939 FC 43
Referred to
Para 30
(1955) 2 SCR 925
Followed
Para 31
(2002) 6 sec 543
Distinguished
Para 32
1974 (1) SCR 559
Distinguished
Para 33
1964 SCR 671
Distinguished
Para 34
2000 (3) Suppl. SCR 747
Referred to
Para 35
2006 (3) SCR 305
Relied on
Para 36
2004 (5) Suppl. SCR 790
Referred to
Para 39
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1491 of 2012.
From the Judgment & Order dated 1.5.2006 of the High
Court of Jharkhand at Ranchi in Crl. M.P. No. 822 of 2005.
WITH
Crl. A. No. 1492 of 2012.
A
B
c
D
E
F
K.V. Vishwanathan, Colin Gonsalves, Mukul Rohtagi,
Naveen Kumar, Abhishek Kaushik, Tariq Adeeb, Jyoti
Mendiratta, Ratan Kumar Choudhuri, Vishwajit Singh, Abhindra
G
Maheshwari, Pankaj Singh, Veera Kual Singh for the Appearing
parties.
The Judgment of the Court was delivered by
H
136
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A
(SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
granted.
2. In both these appeals, by special leave, judgment and
order dated 1 /5/2006 delivered by the Jharkhand High Court
B in Criminal Misc. Petition No.822 of 2005 and Criminal Misc.
Petition No.640 of 2005 filed under Section 482 of the Criminal
Procedure Code (for short, "the Code") is challenged. Criminal
Misc. Petition No.640 of 2005 was filed by Shri Rajiv Ranjan
Singh, Deputy Superintendent of Police, (Dy.S.P.)
Headquarter(ll), Jamshedpur. Criminal Misc. Petition No.822 of
C 2005 was filed by the police personnel posted at Jamshedpur
in different capacities. In the petitions, before the High Court,
the prayer was for quashing the criminal proceedings in
Complaint Case No.731 of 2004 and order dated 14/06/2005,
passed thereon by the Judicial Magistrate First Class,
D Jamshedpur, taking cognizance of the offences alleged in the
complaint.
3. Brief facts of the case need to be stated: Appellant
Kailashpati Singh is the complainant. On 23/7/2004, he filed a
E complaint in the Court of C.J.M, Jamshedpur being Complaint
Case\ No.731 of 2004 against (1) Rajiv Ranjan Singh, Dy.S.P.-
11, (2) Pradeep Kumar, S.I., (3) Omprakash, S.I., (4) Shyam
Bihari Singh, constable and (5) Bharat Shukla, constable. In the
complaint, the complainant alleged that his son Amit Pratap
F Singh @ Munna Singh (for convenience, "deceased Munna
Singh") was killed in a fake encounter by the accused named
in the complaint including three others on 1/7/2004 at about
10.30 p.m. at Domohani, Sonari, Jamshedpur. According to the
complainant, he received telephonic message on 2/7/2004
G from one Sanjay Kumar of Jamshedpur that his son was killed
in an encounter. This news was also published in the local
newspapers of Jamshedpur. As per the newspaper report,
along with the deceased, three others viz. Rajib Dubey, Babloo
Prasad and Rambo were also killed. According to the
complainant, he rushed to Jamshedpur with his eldest son
H
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 137
DEPTT. OF HOME, RANCHl-1 [RANJANA PRAKASH DESAI, J.]
Krishna Singh and contacted the Jamshedpur Police
A
Authorities for the purpose of receiving the dead body of his
B
son for cremation. However, the police refused to handover the
dead body. Therefore, the complainant's eldest son Krishna
Singh reported the matter to the Deputy Commissioner, East
Singhbhum, Jamshedpur. However, the police did not hand
over the dead body of the deceased in spite of repeated
requests made to the proper authorities. It is the complainant's
case that he lpter on came to know that the police had obtained
signature of one Sanjay Kumar under coercion on a challan,
showing that the dead body was received by him. Instead of c
handing over the dead body to Sanjay Kumar, according to the
complainant, it was cremated at Parvati Ghat, Adityapur. The
complainant and members of his family were kept in dark. This
was done to destroy the evidence and manufacture the story
of police encounter. It is the case of the complainant that 0
deceased Munna Singh was not involved in any criminal
activities. He used to provide his jeep to people on rent at
Jamshedpur and other places and earn his livelihood.
According to the complainant, deceased Munna Singh was
falsely involved in Sonari P.S. Case No.15of1994 dated 6/3/
E
1994 under Section 392 of the Indian Penal Code (for short,
"the IPC"). As a matter of fact, on that day, he was only 9 years
F
old. The complainant stated that the postmortem report shows
that three bullets were found in the chest of deceased Munna
Singh indicating that he was killed by the police by firing from
close range. The complainant took exception to the fact that the
autopsy was not video-graphed. The complainant also
contended that the accused committed the offence not in
discharge of their official duties, therefore, no sanction was
required to prosecute them under Section 197 of the Code.
According to the complainant, the accused have thus
G
committed offence under Sections 120-B, 203 and 302 read
with Section 34 of the IPC.
4. The other version which also needs to be stated is
disclosed from the FIR lodged on 1/7/2004 by one Jeevan
H
138
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A Prasad Naredi, a dealer in scrap that on 1/7/2004 at 9.50 p.m.
some miscreants came to his house riding on motor cycles.
They were armed with firearms. They fired at his office situated
in his house and ran away. This was done to threaten him and
to force him to yield to their ransom demand. It is the case of
B the police personnel as disclosed in the FIR lodged by the
Dy.S.P. Rajiv Ranjan Singh that, having received information
about this incident, the police set out to arrest the accused.
They traced them and asked them to surrender. However,
instead of surrendering, they fired at the police. The police had
c to retaliate to save themselves and, in that, four criminals were
killed. The rest escaped. Son of the ~omplainant was one of
those who were killed.
5. By the impugned judgment and order, the High Court
allowed the petition filed by Rajiv Ranjan Singh, Dy.S.P., on the
D ground that sanction required under Section 197 of the Code
was not obtained. The order impugned before the High Court
to the extent it took cognizance of the offences against him, was
quashed. So far as the other police personnel are concerned,
the High Court dismissed their petition on the ground that no
E notification issued under Section 197(3) of the Code was
produced by them to show that they were protected against
prosecution in respect of any offence alleged to have been
committed while acting or purporting to act in discharge of their
official duties.
F
6. Being aggrieved by the rejection of their prayer for
quashing the complaint, appellants Om Prakash & Ors. have
come to this court. Being aggrieved by the impugned judgment
and order of the High Court, to the extent it quashed the
G proceedings against Rajiv Ranjan Singh, Dy.S.P.-11, the
complainant has come to this court. As both the appeals
challenge the same judgment and order and they arise out of
the same facts, we dispose them of by this common judgment.
7. We have heard Mr. K.V. Viswanathan, senior advocate
H for appellants Om Prakash & Ors., Mr. Colin Gonsalves, senior
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT, 139
DEPlT OF HOME, RANCHl-1 (RANJANAPRAKASH DESAI, J.]
advocate for complainant Kailashpati Singh and Mr. Mukul
A
Rohtagi, senior advocate for the respondent- State and Dy.S.P.
Rajiv Ranjan Singh.
8. Before we deal with the rival contentions, it is necessary
to state one admitted fact which leads us to conclude that the
8
reason given by the High Court for not quashing proceedings
against appellants Om Prakash & Ors. namely that no
notification under Section 197(3) of the Code was produced
by them protecting them from prosecution in respect of any
offence alleged to have been committed while acting or
purporting to act in discharge of their official duties, is incorrect.
C
We have been shown a copy of the Notification dated 16/5/
1980 issued by the State of Bihar which extends the protection
of sub-section (2) of Section 197 of the Code to all the
members of the police force as it includes both officers and
men. Mr. Gonsalves, learned senior counsel for the complainant
D
has not disputed this position. It is, therefore, not necessary to
dilate further on this issue.
9. It would be appropriate to begin with the submissions
of Mr. Gonsalves, learned senior counsel appearing for the
E
complainant, because the complainant's case is that his son
was killed in a fake encounter. Counsel submitted that the
postmortem notes disclose that deceased Munna Singh had
received injuries on chest. This is indicative of firing from close
range. The nails of deceased Munna Singh were blackened,
F
which militates against the theory of genuine encounter.
Counsel submitted that it was necessary for the police to
videograph the postmortem as per the Guidelines issued by
the National Human Rights Commission {"NHRC"). Counsel
further submitted that the body of deceased Munna Singh was
G
not handed over to his brother-in-law as alleged. His signature
was taken under duress on a receipt created to show that the
body was handed over. Deceased Munna Singh was cremated
without informing the members of his family. Counsel further
submitted that in the FIR lodged by Jeevan Naredi, it is stated
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140
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A that blood was found at the site of occurrence. However, no
such blood was found. Counsel submitted that the police diaries
do not show the movements of the police during the period of
encounter. Falsity of the encounter theory is evident because
none of the members of the police party received injuries.
B Counsel pointed out that there are no credible private
witnesses, to depose about the alleged encounter. The police
have asserted that deceased Munna Singh was involved in a
serious crime which took place in 1994. Relying on the
certificate issued by Bihar School Examination Board in which
c birth date of deceased Munna Singh is shown as 10/1/1985
[Annexure P-1 in the appeal filed by the complainant], counsel
contended that deceased Munna Singh was only nine years of
age in 1994. Therefore, this is really a concocted case. Counsel
pointed out that after the complainant filed a complaint on 27/
0 7/2004, on 31 /8/2004, three challans were filed against
deceased Munna Singh just to show that he was a dreaded
criminal. All these circumstances show that the police have
made desperate efforts to cover up the cold blooded murders
committed by them. They are trying to concoct a case of a
genuine encounter.
E
10. As regards requirement of sanction, counsel submitted
that there is intrinsic evidence to show that the police are guilty
of cold blooded murders. By no stretch of imagination, it can
be said that when deceased Munna Singh was shot dead, the
F police were discharging their public duty. Therefore, there is no
question of obtaining sanction to prosecute the police personnel
involved in this case. Counsel submitted that when the question
of sanction is raised, it must be studied with reference to the
complaint and not with reference to the documents produced
G by the accused to set up a plea of self defence. Counsel
submitted that the plea of self defence can only be raised in
the trial court. Counsel submitted that whether there is false
encounter or not, must be considered only on the basis of the
complaint and testimonies recorded before the charge is
H framed. No material produced by the accused should be taken
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 141
DEPTT. OF HOME, RANCHl-1 [RANJANA PRAKASH DESAI, J.]
into account when there is unimpeachable evidence to show
A
that the police are guilty of false encounter. In such case,
sanction is not required. In support of his submissions, counsel
relied on the judgment of the Federal Court in Dr. Hori Ram
Singh v. Empower1 judgments of this court in Matajog Dobey
v. H. C. Bhari, 2 Pukhraj v. State of Rajasthan & Anr., 3 Nagraj
B
v. State of Mysore4 , Raj Kishor Roy v. Kamleshwar Pandey
& Anr, 5 K. Satwant Singh v. The State of Punjab6 and State
of Orissa through Kumar Raghvendra Singh & Ors. v.
Ganesh Chandra Jew7 . Counsel also relied on Zandu
Pharmaceutical Works Ltd. & Ors. v. Mohd. Sharafu/ Haque c
& Anr. 8 on the question of nature of powers of the High Court
under Section 482 of the Code.
11. On the other hand, Mr. Vishwanathan, learned senior
counsel appearing for the appellants Om Prakash and Ors. and
Mr. Mukul Rohtagi, learned senior counsel appearing for the
D
State of Jharkhand and Dy. S.P. Rajiv Ranjan Singh placed
heavy reliance on Sankaran Moitra v. Sadhna Das & Anr. 9
and submitted that sanction is a condition precedent for
successful prosecution of a public servant when the provision
is attracted. It was submitted that in this case, there are
E
unimpeachable circumstances which establish that deceased
Munna Singh along with others had fired at the house of Jeevan
Naredi and fled from there. The police tried to arrest them. They
fired at the police. The police fired in defence and in
performance of their duty. They cannot, therefore, be prosecuted
F
1. AIR 1939 FC 43.
2. (1955) 2 SCR 925.
3. 1974 (1) SCR 559.
4. AIR 1964 SC 269.
5. c2002) 6 sec 543.
6. 1960 (2) SCR 89.
1. c2004) 8 sec 40.
8. c2oos) 1 sec 122.
9. c2oos) 4 sec 584 ..
G
H
142
SUPREME COURT REPORTS
(2012] 9 S.C.R.
A without sanction. The prosecution initiated against the police
personnel without sanction must, therefore, be quashed.
Counsel refuted each and every allegation made by Mr.
Gonsalves.
8
12. Certain material facts which can be gathered from the
documents, which are on record need to be stated. It would be
necessary first to refer to the FIR lodged by Jeevan Prasad
Naredi, whose house was attacked by the criminals because
it is first in point of time. la his FIR dated 1/7/2004 lodged at
C PS Bistupur at 2330 hrs, Naredi stated that he is a scrap
dealer, who purchases scrap from Telco and Tisco to supply
the same to Telco Foundry Jamshedpur. He stated that on 1/7/
2004 in the night at 9.45 p.m., he was in his office which is
situated in his residence. Suddenly, at 9.50 p.m., some rounds
of fire were fired at the room used by him as office. The bullets
D hit the outer wall of the said room and the wall of the gate of
his house. He directed the members of his family to remain
inside the house. On hearing the gun shots, his neighbour
shouted. He mustered courage and went outside the house
after opening the main gate. His neighbour told him that 2 to 3
E motor cyclists had come there. They came from Regent Hotel
road side towards his house and suddenly started firing at the
wall of the room used by him as office. He found marks of firing
at two places on the outer wall of the said room and also on
the front side main wall of the gate of his house. He found empty
F cartridges and one bullet lying at the place of incident. He further
stated that the dreaded criminal Babloo Prasad had given him
threat. He had demanded ransom from him. Out of fear, he had
changed his telephone number. Therefore, Babloo Prasad
could not contact him and, out' of frustration, he along with his
G associates had attacked his house so that ransom amount
could be recovered from him.
13. It is also necessary to refer to the FIR filed by Dy.S.P.
Rajiv Ranjan Singh dated 2/7/2004 at 0015 hrs. As per this FIR,
on 2/7/2004, he received information at 2125 hours that within
H
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 143
DEPTT. OF HOME, RANCHl-1 [RANJANA PRAKASH DESAI, J.)
Bistupur Police Station, some firing incident had occurred. He
A
along with the task force officers left in a Sumo Car to verify
the said information. On verification, he came to know that some
criminals riding motor cycles came to the house of one Jeevan
Naredi, a businessman dealing in scrap, fired bullets at his
house and moved towards Rani Kudar, which comes within the
B
jurisdiction of Kadma Police Station. He along with his police
team left the Headquarters to trace the criminals. At that time,
he received information that some boys riding motor cycles in
a great speed had gone towards Matin Drive. He immediately
informed SHO, Sonari D.K. Srivastava about the incident and c
asked him to start a search for the accused, who had gone
towards Matin Drive. He also reached Sonari, Jhunjani. In the
light of the Sumo Car, he saw five to six boys standing on the
Pucci road with motor cycles. He stopped his car and ordered
constable Bharat Shukla and constable Shyam Bihari Singh
0
(the appellants before us) to ask the boys, as to who they were
and why they were standing there. On being so questioned, one
of the boys asked a counter question to them as to who they
were. The constables replied that they were from the police
force. As soon as they heard this, suddenly, one of them took
out a pistol from his vest and fired. A shot hit the glass of Sumo
E
Car. The police party was miraculously saved. Dy.S.P. Rajiv
Ranjan Singh got out of the car and told his police team to take
safe positions. He asked the criminals to surrender, but they
divided themselves into two pairs and started firing at the police
team. The police also started firing in defence. At that time,
SHO, D.K. Srivastava, PO Sonari also came there along with
other police personnel. Dy.S.P. Rajiv Ranjan Singh gave a call
F
on his mobile to PCR and Patrol Officer about the encounter.
The criminals had taken positions behind a tree. The firing
continued for 15 to 20 minutes. Thereafter, they ran towards
G
Nirmal Basti. Dy. S.P. Rajiv Ranjan Singh and others went to
the spot and found that two criminals were lying dead near
riverside and two criminals were lying in injured condition
behind the tree.
H
144
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A
14. On receiving information about the encounter,
Superintendent
of Police
Jamshedpur,
Assistant
Superintendent of Police Saket Kumar, City Police
Superintendent, Superintendent of Police, etc. came there.
Articles lying at the seen of offence were seized. They included
B firearms of foreign make. The complaint of Dy.S.P. Rajiv Ranjan
Singh further stated that it appeared that all these criminals had
gathered at Dumjani after firing at the house of Jeevan Naredi
for ransom and were planning further action. During that period,
police party reached there. The criminals armed with illegal
c weapons started firing at the police to kill them. The police in
order to defend themselves and to effect legal arrest of the
criminals fired in retaliation. During this encounter, four criminals
died and two unknown criminals ran towards Nirmal Basti.
D
E
15. Some of the articles seized by the police are
described in the seizure memo as under:
"Details of seized items:
(i)
9 mm empty cartridge lying around the Chabutara
- 6 nos.
(ii)
Bullet Pillet - lying nearby Chabutara along the
\
Sartua tree - 2 nos.
(iii)
Black color Hero Honda Motorcycle (without
F
number plate) Engine no.01 B 18M20712 Chassis
no.01 B20C21175 lying in the west side of the
Board of Nirmal Mahto Udyan.
G
H
(iv)
A iron made pistol lying along the wheel of
motorcycle - 'Made in Western Germany Auto
Pistol 57914' marked on the Barrel and 'Made in
Western Germany and Auto Pistol 9 Round CAL
765A 57914' marked on body. Length of the barrel
is about 9 fingers and But - 6 finger having
magazine fitted at the bottom. On opening, one
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 145
DEPTI. OF HOME, RANCHl-1 [RANJANA PRAKASH DESAI, J.]
empty cartridge entangled in its chamber and 4 live
A
cartridges of 7.65 bore loaded in the Magazine.
(v)
xxx xxx xxx
(vi)
Near the right hand of deceased Rajeev Dubey, a
one barrel country-made .315 bore pistol measuring
8
8 fingers in length, 5 fingers in body having wooden
handle. On opening, 'KF 8mm' mark was found in
the barrel. One cartridge entangled in pistol. One
live cartridge 8 mm in the right pocket of trouser of
Rajeev Dubey and one used cartridge lying near
C
the dead body and two used cartridges 7.65 bore
near the head of the dead body.
(vii) xxx xxx xxx
(viii) Western-North from here - Without number plate
D
Hero
Honda
Splendor
bearing
Engine
no.97K17E05846 Chessis no.97K19F5777 with
broken brake light.
(ix)
xxx xxx xxx
(x)
From the pocket of Munna Singh, Samsung Mobile
phone in running condition. EMEi no. of the mobile
set -
35236200608952/6-19 in which SIM
no.9635413435 was installed. In addition, three
SIM cards wrapped in a piece of paper kept in the
plastic cover of mobile bearing no.9835186118,
9835374951, 9431066524. From the rear pocket
of Munna Singh, a ballet marked 'Bihar Police' on
E
F
it containing Rs.500x8+50x1 +1 Ox1 total Rs.4,060
G
and an identity card of Bihar Police showing Munna
Singh in police uniform with following details : Name
Saroj Kumar Singh; Post - Arakshi (729) with seal
of Arakshi Adhikshak, Rohtas.