# Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors

- **Citation:** 2024 INSC 979
- **Court:** Supreme Court of India
- **Decided:** 2024-12-13
- **Bench:** J.B. Pardiwala, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/om-prakash-yadav-v-niranjan-kumar-upadhyay-ors-37371
- **Pages:** 60

## Headnote

Issue arose as regards whether in the absence of the grant
of sanction for prosecution u/s.197 CrPC, the CJM, Firozabad
could have taken cognizance of the charge sheets against the
respondents; and whether the offence or the act alleged to have
been committed by the respondents could be said to have been
done while acting or purporting to act in the discharge of official
duty.
Headnotes†
Code of Criminal Procedure, 1973 - s.197 - Prosecution of
Judges and public servants - Incident of indiscriminate firing
by eight persons including main accused at Firozabad resulting
in death of the brother of the appellant and grievous injuries
to brother's son - FIR by appellant - On the same day, another
FIR registered against the main accused by respondent no.
5-head constable for carrying bottles of illegal foreign liquor
at Gwalior - Respondent no.5, alongwith respondent no.
3-Head Constable and respondent no. 4-A.S.I. arrested the
accused and released him on bail the same day - Chargesheet
submitted by IO - Chargesheet also submitted in the first FIR
stating that investigation was still pending against respondent
no. 1, Town Inspector, respondent nos. 3, 4, 5 for shielding
the accused - Thereafter, application by IO for staying the
proceedings against the accused as regards illegal liquor case
alleging that respondent no. 1 was a relative of the accused
and respondent nos. 3, 4, 5 had conspired to create a bogus
case with the object of providing the main accused with an alibi
for alleged crime committed at Firozabad which was rejected -
Application by IO seeking sanction u/s.197 for prosecuting the
respondents - Sanction could not be granted till the disposal
* Author
778
[2024] 12 S.C.R.
Supreme Court Reports
of the trial in case arising out of FIR in Gwalior - Appellant
sought quashing of criminal proceedings in the case regarding
seizure of illegal liquor - High Court stayed the proceedings -
Supplementary charge sheets filed against respondents
for being involved in hatching conspiracy of murder of the
appellant's brother and CJM took cognizance - Respondents
then filed application seeking quashing the proceedings arising
out of the supplementary charge sheets - High Court quashed
the proceedings on the ground that sanction to prosecute
respondents u/s.197 was necessary - Correctness:
Held: When a police official is said to have lodged a false case, he
cannot claim that sanction for prosecution u/s. 197 was required
since it can be no part of the official duty of a public official to
lodge a bogus case and fabricate evidence or documents in
connection with the same - There exists no reasonable or rational
nexus between such an act and the duties assigned to the public
servant for the claim that it was done or purported to be done in
the discharge of his official duty - Mere fact that an opportunity
to register a false case was furnished by the official duty would
certainly not be sufficient to apply s. 197 - Allowing so, would enable
the accused to use their status as public servants as a facade for
doing an objectionable, illegal and unlawful act and take undue
advantage of their position - If case registered in Gwalior was a
false case then refusal to grant sanction would not operate as a
bar for their prosecution - Moreover, the respondent no. 1 was
not even posted as the S.H.O or T.I at the Police Station when
the said false case was registered - Respondent no. 1 himself
admitted that he was in fact posted at District, 120 kms away
from Gwalior during the relevant time - Thus, any act or offence
committed by the respondent no. 1 can safely be said to have been
outside the scope of his official duty which obviates the question
of sanction for his prosecution - Requirement of sanction is one
that may arise at any stage of the proceeding - No requirement of
sanction for respondent no. 1 as he was not posted at the Police
station in Gwalior at the relevant time where the alleged false was
registered - For respondent nos 3, 4, 5 if

## Text

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[2024] 12 S.C.R. 777 : 2024 INSC 979
Om Prakash Yadav
v.
Niranjan Kumar Upadhyay & Ors.
(Criminal Appeal No(s). 5267-5268 of 2024)
13 December 2024
[J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for Consideration
Issue arose as regards whether in the absence of the grant
of sanction for prosecution u/s.197 CrPC, the CJM, Firozabad
could have taken cognizance of the charge sheets against the
respondents; and whether the offence or the act alleged to have
been committed by the respondents could be said to have been
done while acting or purporting to act in the discharge of official
duty.
Headnotes†
Code of Criminal Procedure, 1973 - s.197 - Prosecution of
Judges and public servants - Incident of indiscriminate firing
by eight persons including main accused at Firozabad resulting
in death of the brother of the appellant and grievous injuries
to brother's son - FIR by appellant - On the same day, another
FIR registered against the main accused by respondent no.
5-head constable for carrying bottles of illegal foreign liquor
at Gwalior - Respondent no.5, alongwith respondent no.
3-Head Constable and respondent no. 4-A.S.I. arrested the
accused and released him on bail the same day - Chargesheet
submitted by IO - Chargesheet also submitted in the first FIR
stating that investigation was still pending against respondent
no. 1, Town Inspector, respondent nos. 3, 4, 5 for shielding
the accused - Thereafter, application by IO for staying the
proceedings against the accused as regards illegal liquor case
alleging that respondent no. 1 was a relative of the accused
and respondent nos. 3, 4, 5 had conspired to create a bogus
case with the object of providing the main accused with an alibi
for alleged crime committed at Firozabad which was rejected -
Application by IO seeking sanction u/s.197 for prosecuting the
respondents - Sanction could not be granted till the disposal
* Author
778
[2024] 12 S.C.R.
Supreme Court Reports
of the trial in case arising out of FIR in Gwalior - Appellant
sought quashing of criminal proceedings in the case regarding
seizure of illegal liquor - High Court stayed the proceedings -
Supplementary charge sheets filed against respondents
for being involved in hatching conspiracy of murder of the
appellant's brother and CJM took cognizance - Respondents
then filed application seeking quashing the proceedings arising
out of the supplementary charge sheets - High Court quashed
the proceedings on the ground that sanction to prosecute
respondents u/s.197 was necessary - Correctness:
Held: When a police official is said to have lodged a false case, he
cannot claim that sanction for prosecution u/s. 197 was required
since it can be no part of the official duty of a public official to
lodge a bogus case and fabricate evidence or documents in
connection with the same - There exists no reasonable or rational
nexus between such an act and the duties assigned to the public
servant for the claim that it was done or purported to be done in
the discharge of his official duty - Mere fact that an opportunity
to register a false case was furnished by the official duty would
certainly not be sufficient to apply s. 197 - Allowing so, would enable
the accused to use their status as public servants as a facade for
doing an objectionable, illegal and unlawful act and take undue
advantage of their position - If case registered in Gwalior was a
false case then refusal to grant sanction would not operate as a
bar for their prosecution - Moreover, the respondent no. 1 was
not even posted as the S.H.O or T.I at the Police Station when
the said false case was registered - Respondent no. 1 himself
admitted that he was in fact posted at District, 120 kms away
from Gwalior during the relevant time - Thus, any act or offence
committed by the respondent no. 1 can safely be said to have been
outside the scope of his official duty which obviates the question
of sanction for his prosecution - Requirement of sanction is one
that may arise at any stage of the proceeding - No requirement of
sanction for respondent no. 1 as he was not posted at the Police
station in Gwalior at the relevant time where the alleged false was
registered - For respondent nos 3, 4, 5 if the prosecution case
is correct that they also played dubious role in registering a false
case, then the requirement of sanction would not be a sin qua non
for proceeding further with the criminal proceedings - However,
the defence must be given an opportunity to rebut the same by
leading appropriate evidence - Criminal proceedings pending
before the CJM, Firozabad should not have been quashed at such
[2024] 12 S.C.R.
779
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
a preliminary stage - CJM, Firozabad rightly took cognizance of
the charge sheets - High Court erred in considering this aspect
while quashing the proceedings - Trial court directed to proceed
with the trial and at any stage of trial if evidence suggests that the
acts complained of were indeed done or purported to be done in
the discharge of official duty by respondent nos. 3, 4 and 5 or that
the FIR registered by them was not bogus, the trial may be stayed
for want of sanction - Thus, the question of sanction only qua
respondent nos. 3, 4 and 5 left open to be appropriately decided
by the trial court at a suitable stage - Impugned order passed by
the High Court set aside. [Paras 67, 75-86]
Code of Criminal Procedure, 1973 - s.197 - Object behind
enactment of s.197 - Construction of expression "any
offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty"
in s.197 - Tests for applicability of s. 197 - Explained.
[Paras 40-66, 68-74]
Case Law Cited
Dr. Hori Ram Singh v. The Crown, AIR 1939 FC 43; Gill and Another
v. The King, AIR 1948 PC 128; Albert West Meads v. The King,
AIR 1948 PC 156; Shreekantiah Ramayya Munipalli v. State of
Bombay [1955] 1 SCR 1177 : (1954) 2 SCC 992; Amrik Singh v.
State of Pepsu [1955] 1 SCR 1302 : AIR 1955 SC 309; Matajog
Dobey v. H.C. Bhari [1955] 2 SCR 925 : AIR 1956 SC 44; Dhannjay
Ram Sharma v. M.S. Uppadaya and Others, AIR 1960 SC 745; P.
Arulswami v. State [1967] 1 SCR 201; Harihar Prasad Etc. v. State
of Bihar (1972) 3 SCC 89; B. Saha and Others v. M.S. Kochar
[1980] 1 SCR 111 : (1979) 4 SCC 177; State of Maharashtra v.
Dr. Budhikota Subbarao [1993] 2 SCR 300 : (1993) 3 SCC 339;
R. Balakrishna Pillai v. State of Kerala and Another [1995] Supp.
6 SCR 236 : (1996) 1 SCC 478; Shambhoo Nath Misra v. State
of U.P. and Others [1997] 2 SCR 1139 : (1997) 5 SCC 326; State
of Orissa and Others v. Ganesh Chandra Jew [2004] 3 SCR 504 :
(2004) 8 SCC 40; S.K. Zutshi and Another v. Bimal Debnath and
Another [2004] Supp. 3 SCR 400 : (2004) 8 SCC 31; K. Kalimuthu
v. State [2005] 3 SCR 1 : (2005) 4 SCC 512; Sankaran Moitra
v. Sadhna Das and Another [2006] 3 SCR 305 : (2006) 4 SCC
584; Choudhury Parveen Sultana v. State of West Bengal and
Another [2009] 1 SCR 99 : (2009) 3 SCC 398; Urmila Devi v.
780
[2024] 12 S.C.R.
Supreme Court Reports
Yudhvir Singh [2013] 16 SCR 542 : (2013) 15 SCC 624; Rajib
Ranjan v. R. Vijaykumar [2014] 10 SCR 982 : (2015) 1 SCC 513;
Inspector of Police and Another v. Battenapatla Venkata Ratnam
and Another [2015] 4 SCR 609 : (2015) 13 SCC 87; Surinderjit
Singh Mand and Another v. State of Punjab and Another [2016] 5
SCR 653 : (2016) 8 SCC 722; Pukhraj v. State of Rajasthan and
Another [1974] 1 SCR 559 : (1973) 2 SCC 701; State of Bihar v.
Kamla Prasad Singh and Others [1998] 3 SCR 201 : (1998) 5 SCC
690; Bakhshish Singh Brar v. Gurmej Kaur and Another [1988]
1 SCR 450 : (1987) 4 SCC 663; P.K. Pradhan v. State of Sikkim
[2001] 3 SCR 1119 : (2001) 6 SCC 704; Devinder Singh v. State
of Punjab [2016] 6 SCR 295 : (2016) 12 SCC 87; Parvat Singh
and Others v. State of Madhya Pradesh [2020] 2 SCR 964 : (2020)
4 SCC 33; Birbal Nath v. State of Rajasthan [2023] 14 SCR 85 :
2023 SCC OnLine SC 1396 - referred to.
List of Acts
Madhya Pradesh Excise Act, 1915; Government of India Act,
1935; Evidence Act, 1872; Penal Code, 1860; Code of Criminal
Procedure, 1898; Code of Criminal Procedure, 1973.
List of Keywords
Absence of grant of sanction for prosecution u/s.197 CrPC;
While acting or purporting to act in the discharge of official duty;
Supplementary charge sheets; Hatching conspiracy of murder;
Quashing the proceedings; Sanction to prosecute; Reasonable
or rational nexus; Necessity of sanction; Expression "any offence
alleged to have been committed by him while acting or purporting
to act in the discharge of his official duty" in s.197; Sanction
for prosecution; Bogus FIR; Malafide prosecution; Act integrally
connected with official duties; Acts done under color of office;
Where sanction not required; Dereliction of official duty; Misuse
of authority; Sanction not sine qua non for criminal proceedings.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
5267-5268 of 2024
From the Judgment and Order dated 19.04.2018 of the High Court
of Judicature at Allahabad in APP Nos. 4080 and 32494 of 2009
[2024] 12 S.C.R.
781
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
Appearances for Parties
Ravindra Singh, Sr. Adv., Raman Yadav, Syed Mehdi Imam,
Ms. Akriti Chaturvedi, Priyam Kaushik, Vishesh Kumar Singh,
Advs. for the Appellant.
Ardhendumauli Kumar Prasad, Sr. A.A.G., R. Basant, Devashish
Bharukha, Sr. Advs., Mayank Sapre, Yash Sharma, Aditya Pratap
Singh, Ujjwal Singh,. Vishnu Shankar Jain, Ms. Ananya Sahu,
Akshay Kumar, Mrs. Nanita Sharma, Vivek Sharma, Shailendra
Singh, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
1.
Leave granted.
2.
These appeals arise out of the common Judgment and Order
passed by a learned Single Judge of the High Court of Judicature at
Allahabad dated 19.04.2018 in Criminal Misc. Writ Application Nos.
4080 of 2009 and 32494 of 2009 respectively filed by the respondent
nos. 1, 3, 4 and 5 respectively under Section 482 of the Code of
Criminal Procedure, 1973 (for short, the "CrPC") whereby the High
Court allowed the applications and quashed the proceedings of
Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) as well
as Case No. 67-A of 2009 (State vs. Ram Prakash Gunkar and
others) pending before the CJM, Firozabad, both arising out of Case
Crime No. 617 of 2007 registered for the offence punishable under
Sections 147, 148, 149, 307, 302, 201 and 120-B respectively of
the Indian Penal Code, 1860 (for short, the "IPC") with the Dakshin
Police Station, District Firozabad, Uttar Pradesh.
A.
FACTUAL MATRIX
3.
On 12.10.2007, at 09:15 am, Om Prakash Yadav (hereinafter, the
"appellant") lodged a First Information Report (hereinafter, "FIR")
as Case Crime No. 617 of 2007 for the offence punishable under
Sections 147, 148, 149, 302 and 307 of IPC respectively with the
Dakshin Police Station, Firozabad, Uttar Pradesh, against Surender
Singh Gurjar, Veerbhan Gurjar, Ashok Dixit, Pappu Dixit, Sanjay
782
[2024] 12 S.C.R.
Supreme Court Reports
Dixit and three others. The FIR alleged that the appellant's brother,
Suman Prakash Yadav who was a teacher at the Tilak Inter College,
Firozabad, was killed and his brother's son Harsh aged about
41⁄2 years was grievously injured by the aforesaid accused persons
by indiscriminately firing with their handguns near the Suhagnagar
Crossing, at 08:30 am, on 12.10.2007. The appellant claimed that
the incident was witnessed by him and several others.
4.
On the same day, another FIR was registered as Case Crime No.
967 of 2007 at the Murar Police Station, Gwalior, Madhya Pradesh,
for the offence punishable under Section 34 of the Madhya Pradesh
Excise Act, 1915 (hereinafter, the "Excise Act") against Ashok
Dixit who is the main accused of Case Crime No. 617 of 2007.
The FIR which was lodged by Head Constable Ram Baran Singh
Yadav (hereinafter, "respondent no.5") stated that based on the
information received from an informant while patrolling the area, the
accused Ashok Dixit was arrested for carrying 12 bottles of illegal
foreign liquor near the Thatipur Crossing. It was stated therein
that the respondent no. 5 along with A.S.I. Ram Prakash Gunkar
(hereinafter, "respondent no. 4") and Head Constable Vijay Bahadur
Singh (hereinafter, "respondent no. 3") of the Thatipur Chauki,
Murar Police Station, had seized the illegal liquor and arrested the
accused at around 09:30 am on 12.10.2007. It was further added
that the accused, Ashok Dixit, was later released on bail by the
Station House Officer (hereinafter, "SHO"), D.S. Khushawa of the
Murar Police Station, on the same day, upon furnishing the necessary
surety since the offence under Section 34 of the Excise Act was
a bailable one. On 26.10.2007, the concerned IO is said to have
submitted a Charge Sheet in connection with Case Crime No. 967
of 2007 against Ashok Dixit before the Chief Judicial Magistrate
(hereinafter, "CJM"), Gwalior.
5.
The Investigating Officer (hereinafter, "IO") at Dakshin, Firozabad
undertook further investigation and recorded the statements of
several witnesses under Section 161 CrPC in connection with Case
Crime No. 617 of 2007. On 05.01.2008, the Charge Sheet No. 3 of
2008 was submitted before the CJM, Firozabad, against 12 persons
namely Ashok Dixit, Pappu Dixit, Sanjay Dixit, Surender Singh Gurjar,
Veerbhan Gurjar, Sandeep, Swadesh Bhardwaj, Ashu, Suresh,
Pancham, Rajesh and Devender. However, the charge sheet stated
that the investigation against Niranjan Kumar Upadhyay (hereinafter,
[2024] 12 S.C.R.
783
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
"respondent no. 1"), respondent no.3, respondent no. 4, respondent
no. 5 and two other individuals in regard to the FIR registered for
the offence under Section 34 of the Excise Act in Murar, Gwalior
allegedly for the purpose of shielding the accused, Ashok Dixit, was
still pending.
6.
Subsequently, on 23.01.2008, the IO at Dakshin, Firozabad recorded
the statements of SHO D.S. Khushawa, respondent no. 3, respondent
no. 4 and respondent no. 5 respectively of the Murar Police Station,
Gwalior under Section 161 of CrPC.
7.
Soon thereafter, on 30.01.2008, the IO at Dakshin, Firozabad
moved an application before the CJM, Gwalior, Madhya Pradesh,
requesting that the proceedings in Case No. 15003 of 2007 relating
to the Case Crime No. 967 of 2007 under Section 34 of the Excise
Act filed against the accused Ashok Dixit, pending before him, be
stayed. The application alleged that the respondent no. 1 who was
posted in Gwalior as Town Inspector (for short, "TI") was a relative of
the accused Ashok Dixit. It was further alleged that the respondent
nos. 1, 3, 4 and 5 respectively had conspired to shield the accused
from the offence of murder by creating a bogus case under Section
34 of the Excise Act with the sole object of providing the accused with
an alibi for the crime alleged to have been committed in Firozabad.
The incident in Firozabad occurred at 08:30 am while the incident in
Gwalior occurred at 09:30 am on the same day. The distance between
Gwalior and Firozabad being 160 kilometers, the same could not
have been covered in a duration of one hour by road. The application
stated that, since the accused, Ashok Dixit, might confess his guilt in
connection with the offence under Section 34 of the Excise Act with
a view to save himself from the offence of murder, the proceedings
in Case Crime No. 617 of 2007 pending before the CJM, Firozabad
might get adversely affected if the proceedings in Case No. 15003
of 2007 were allowed to be continued.
8.
Upon due consideration of the aforesaid application, the CJM, Gwalior
vide its order dated 05.02.2008, directed the SHO of the Murar Police
Station, Gwalior, to furnish a report before the Court. On 12.02.2008,
the statements of respondent nos. 3, 4 and 5 respectively, were
recorded by the SHO of the Murar Police Station, Gwalior and an
enquiry report was furnished on 17.02.2008 before the CJM, Gwalior.
Upon perusal of the enquiry report, the CJM, Gwalior vide its order
784
[2024] 12 S.C.R.
Supreme Court Reports
dated 23.02.2008 rejected the application dated 20.01.2008 filed by
the IO at Dakshin, Firozabad, as being baseless.
9.
On 14.04.2008, the IO at Dakshin, Firozabad filed an application
before the CJM, Firozabad for the issuance of non-bailable warrant
against the respondent nos. 1, 3, 4 and 5 respectively along with two
other persons. In pursuance of the said application, on 21.04.2008,
the CJM, Firozabad issued a non-bailable warrant against the
aforesaid 6 accused which included the respondent nos. 1, 3, 4 and
5 respectively, herein. However, it is the case of the IO at Firozabad
that the respondent nos. 1, 3, 4 and 5 were absconding and therefore,
proceedings under Sections 82 and 83 CrPC respectively were also
initiated and completed against them.
10. On 02.05.2008, the IO at Dakshin, Firozabad filed an application
before the D.I.G., Gwalior, Madhya Pradesh through the D.I.G.,
Agra, Uttar Pradesh, requesting sanction for prosecution of the
respondent nos. 1, 3, 4 and 5 respectively. Further, on 07.05.2008,
the Superintendent of Police, Firozabad, also sent a letter to the
D.I.G., Gwalior, requesting for the sanction for prosecution under
Section 197 CrPC so that the respondents could be charge-sheeted.
11. In the meantime, the respondent no.1 preferred Criminal Misc. Writ
Petition No. 10181 of 2008 before the High Court of Allahabad and
vide order dated 23.07.2008, the arrest of respondent no. 1 was
stayed.
12. On 30.07.2008, the Superintendent of Police, Firozabad, addressed
one another letter to the D.I.G., Gwalior in the form of a reminder
to accord sanction under Section 197 CrPC for prosecuting the
respondents herein. However, on 02.08.2008, the D.I.G., Gwalior
replied to the Superintendent of Police, Firozabad, informing him
that sanction for prosecution cannot be granted till the disposal of
the trial in connection with Case Crime No. 967 of 2007 registered
at the Murar Police Station, Gwalior for the offence under Section 34
of the Excise Act.
13. On 28.08.2008, the appellant filed a Misc. Criminal Case. No. 5971
of 2008 under Section 482 CrPC before the High Court of Madhya
Pradesh at Gwalior for quashing the criminal proceedings concerning
Case No. 15003 of 2007 arising out of Case Crime No.967 of 2007
registered for the offence under Section 34 of the Excise Act pending
before the Court of CJM, Gwalior. In the alternative, it was prayed
[2024] 12 S.C.R.
785
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
that the proceeding be stayed till a decision is arrived at in the case
pending against Ashok Dixit before the CJM, Firozabad, concerning
Case Crime No. 617 of 2007. The High Court vide its order dated
25.08.2009 stayed the proceedings in Case No. 15003 of 2007 by
observing as follows:
"12. In the light of the above legal position, the Appellant
who is a complainant in the criminal case in connection
with Crime No.617 of 2007 registered against respondent
No.2 at Firozabad has locus standi to file this petition under
section 482 of Cr.P.C. Now legal aspect and circumstances
of the case is to be considered. Suppose for the sake of
argument, if respondent No.2 admits his guilt in the case
of Excise Act pending in the Court of CJM Gwalior what
will be its effect? He will have a good ground of alibi that
at the time of alleged murder of Appellant's brother he
was not present at Firozabad but was present at Gwalior
which is 160 Kms. away from Firozabad. So it will cause
a great prejudice in that case and on the other hand, in
the interest of justice, if proceedings pending in the court
of CJM Gwalior are stayed, it will not cause any prejudice
to respondent No.2. Moreover, it will avoid conflicting
judgments of two Courts. Therefore, it is good case for
invoking inherent powers of the court.
13. Considering the facts and circumstances of the case,
petition is allowed and further proceedings pending in
the court of CJM Gwalior in connection with Excise. Act
pending in the CJM Gwalior concerning Case No.15003 of
2007 are hereby stayed till disposal of the Criminal Case
pending at Firozabad concerning Crime No.617 of 2007."
(emphasis supplied)
14. After a period of almost one year, on 25.10.2008, the IO at Dakshin,
Firozabad recorded the statements of two persons i.e., Ramesh
Yadav and Barelal under Section 161 CrPC. Both stated that they
had witnessed the respondent no.1 being directly involved in the
creation of a false case under Section 34 of the Excise Act in order
to provide the accused Ashok Dixit the benefit of an alibi. Soon
thereafter, on 03.11.2008, a supplementary Charge Sheet No. 3A of
2008 in case Crime No. 617 of 2007 was filed against the respondent
786
[2024] 12 S.C.R.
Supreme Court Reports
no. 1 for the offence punishable under Sections 147, 148, 149, 307,
302, 201 and 120-B IPC respectively for being involved in hatching
a conspiracy of murder that occurred in Firozabad. It was the case
of the IO at Firozabad that the Charge Sheet was filed since he had
found out that the respondent no. 1 was not posted at the Murar
Police Station, Gwalior at the time of the arrest of Ashok Dixit for
the offence under Section 34 of the Excise Act and therefore, the
provision of sanction under Section 197 CrPC would not be attracted
against the respondent no. 1. It is pertinent to observe here that it
is the case of the respondent no. 1 herein that the Charge Sheet
No. 3A of 2008 was backdated to 03.11.2008 when in fact it was
actually filed on 24.11.2008 before the Magistrate.
15. The mother of respondent no.1, while alleging that the appellant was
trying to falsely implicate the respondent no. 1 in the case of murder,
moved an application before the D.I.G., Firozabad, requesting that
the investigation be transferred from the Dakshin Police Station to
some other police station. The D.I.G., Firozabad vide order dated
11.11.2008 directed the Senior Superintendent of Police, Firozabad
(for short, "S.S.P.") to look into the matter. Thereafter, the S.S.P.
called for a status report on the case from the Circle Officer vide
letter dated 14.11.2008. The status report submitted by the Circle
Officer revealed that while the respondent no.1 had obtained a stay
on his arrest from the High Court, the arrest of the other accused
remained pending and the investigation was still going on. Upon
consideration of the same, the S.S.P., Firozabad, vide order dated
20.11.2008 transferred the investigation from the Dakshin Police
Station to the Uttar Police Station at Firozabad, with immediate effect.
16. The CJM, Firozabad took cognizance of the Charge Sheet No. 3A
of 2008 vide order dated 24.11.2008. Immediately, on 28.01.2009,
the respondent no. 1 preferred Criminal Misc. Application No. 4080
of 2009 under Section 482 CrPC before the High Court of Allahabad
seeking to quash the proceedings in Case No. 67 of 2008 (State vs.
Niranjan Kumar Upadhyay) arising out of the above charge sheet in
Case Crime No. 617 of 2007, pending before the CJM, Firozabad.
17. Later, on 25.02.2009, the Charge Sheet bearing No. 30 of 2009 was
filed in the case of the respondent nos. 3, 4 and 5 respectively for the
offence under Sections 147, 148, 149, 307, 302, 201 and 120-B IPC
respectively for being involved in the conspiracy to commit murder
of the appellant's brother at Firozabad. The CJM, Firozabad took
[2024] 12 S.C.R.
787
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
cognizance of the same vide order dated 10.08.2009. On 29.11.2009,
the respondent nos. 3, 4 and 5 respectively also preferred an
application being the Criminal Misc. Application No. 32494 of 2009
under Section 482 CrPC before the High Court of Allahabad seeking
to quash the proceedings of Case No. 67A of 2009 (State vs. Ram
Prakash Gunkar and Ors.) arising out of the said charge sheet in
Case Crime No. 617 of 2007 pending before the CJM, Firozabad.
18. During the pendency of the aforesaid two applications filed under
Section 482 CrPC before the High Court, the Court of Additional
District and Sessions Judge, Firozabad, completed the Sessions
Trial No. 753 and 753A of 2008 respectively and vide the judgment
& order dated 10.07.2015, held all the 12 accused, including Ashok
Dixit, guilty of the offences under Sections 147, 148, 149, 307,
302 and 120-B IPC with which they were charged. The relevant
observations made by the Trial Court are reproduced hereinbelow:
"...The "plea of alibi" taken by accused Ashok Dixit that
on the day of incident he was lodged in jail u/s 34, Excise
Act at P.S. Murar, district Gwalior was with the inconsistent
report of the Murar police officials and after investigation
I.O. has submitted its report to SSP, Gwalior and JM,
Gwalior and stated that the case was false. The above
mentioned police officials have been suspended after
conducting a departmental investigation also they have
been named for conspiring the death along with accused
Ashok Dixit in the charge sheet that has been presented
before CJM, Firozabad in which they have been charged
u/s 302, 120B I.P.C...
It is correct that the distance of 160 kilometres cannot be
covered in one hour and if accused Ashok Dixit was at
Murar, Gwalior at 9.30 a.m., then he cannot be involved in
the commission of incident at Firozabad at 8.30 a.m. It was
contended in this regard on behalf of the prosecution that
accused Ashok Dixit is a cunning criminal. He showed his
presence there colluding with Murar Police station, Gwalior
in order to escape himself from the offence of murder. The
investigator SHO Shri Baldhari Singh made enquiries after
going there, then the whole matter was found forged and
the investigator gave an application to SSP Gwalior in this
regard and also submitted an application before JM Gwalior
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Madhya Pradesh and keeping the investigation in progress,
it was found that in order to save accused Ashok Dixit from
the heinous crime like murder, the forged arrest and his
release on bail has been shown by the police of Murar
police station. SSP Gwalior, on investigation, finding the
whole case forged, has suspended all the officials involved
in the said matter and initiated departmental inquiry against
them and after collecting the evidence in the said case, a
charge sheet has been filed in the court of CJM Firozabad
against the said police officials Niranjan Upadhyay, T.I.
Police Station Murar, Gwalior and Shailendra Singh and
Triloki Gaur and ASI P.P. Gunkar, Head constable Vijay
Bahadur and Head Constable. Rambaran Yadav under
Section 147, 148, 149, 307, 302, 201, 120B IPC with
regard to give cooperation in the conspiracy of murder
under Section 120B IPC. A case No. 67 A/2008 State
Versus Niranjan and others is pending in that regard in
the court of CJM Firozabad and the warrant of the arrest
of the accused persons have been issued. The said file
pending in the court of CJM was summoned on behalf of
the prosecution in this regard, which is available on the
file of the instant session trial which makes it clear that
accused Ashok Dixit has shown his presence at 9.30 a.m.
on the day of incident showing his arrest under Section 34
of Excise Act in order to escape from the case of murder
of Suman Prakash colluding with the police officials of
police station Murar, District Gwalior, Madhya Pradesh
which was found forged in the investigation and charge
sheet has been filed against the said police officials
involving them in the conspiracy of murder and in order
to save accused Ashok Dixit from punishment, the case
of the same is pending in the court of CJM, Firozabad
and warrant of arrest against all the police officials have
been issued and SSP Gwalior has suspended them and
departmental inquiry has been initiated against them. All
these police officials are absconding. Arrest warrants have
been issued against them by CJM Court, Firozabad. The,
copy of charge sheet of Case No.67 A/2008 State Versus
Niranjan and others pending in the court of CJM has
also been filed on record behalf of the prosecution. The
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789
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
proceedings of case No.15003/2007 State Versus Ashok
Dixit under Section 34 of Excise Act, police Station Murar
pending before the CJM Court has been stayed by order
dated 25.08.2009 by the Hon'ble High Court, bench at
Gwalior passed in Misc. Case No.5971. The copy of the
order passed by the Hon'ble High court bench at Gwalior
is filed on record from 613B/25 to 613B/30. SLP has been
filed against the said order before the Hon'ble Supreme
court which was not admitted for hearing, the copy of the
same is filed on record at 613B/31, Therefore, no profit of
case under Section 34 of Excise Act cannot be given to
accused Ashok Dixit and his presence at Murar, District
Gwalior at the time of incident under the case of 34 Excise
Act has been found forged and the accused has made
a forged plea of alibi colluding with the police officials."
(emphasis supplied)
19. The High Court at Allahabad heard the Criminal Misc. Writ Application
Nos. 4080 of 2009 and 32494 of 2009 analogously and disposed
them vide the common Judgment and Order dated 19.04.2018. The
High Court quashed the proceedings in Case Nos. 67 of 2008 and
67A of 2009 respectively essentially on the ground that sanction
to prosecute the respondent nos. 1, 3, 4, and 5 respectively under
Section 197 CrPC was necessary & since it had not been obtained,
the trial cannot proceed. The relevant observations are reproduced
hereinbelow:
"Admittedly, the applicants are public servant and case
was registered under Section 34 Excise Act against main
accused of the murder in the discharge of public duty
but the sanction to prosecute for the offence committed
at Firozabad was not granted by the State of M.P. to
prosecute the applicants for the offence committed within
the jurisdiction of the Police Station, Dakhin at Firozabad
(U.P.) as is evident from the Annexure SA-I and SA-II to
the supplementary affidavit. In the above circumstances,
it ought not to be proper to allow the proceedings to
be continued against the applicants and in case, the
proceeding is allowed to continue against the applicants,
it would be nothing but misuse of process of law.
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In view of what has been submitted and discussed above,
the applications have substance and are liable to be
allowed.
Accordingly, the applications are allowed and the
proceedings pending before CJM, Firozabad as Case No.
67 of 2008 (State Vs. Niranjan Kumar Upadhyay) as well
as Case No. 67A of 2009 (State Vs. Ram Prakash Gunkar
and others) in connected application arising out of Case
Crime No. 617 of 2007 under Sections 147, 148, 149, 307,
302, 201, 120B IPC, P.S. Dakshin, District Firozabad are
hereby quashed."
(emphasis supplied)
20. In such circumstances referred to above, the appellant (complainant)
is here before this Court with the present appeal.
B.
SUBMISSIONS ON BEHALF OF THE APPELLANT
21. Mr. Ravindra Singh, the learned senior counsel appearing for the
appellant submitted that the plea of Alibi which was taken by the
accused Ashok Dixit on the ground that his arrest in connection
with the offence under Section 34 of the Excise Act was effected on
12.10.2007, at 09:30 am, by the officials of the Murar Police Station,
Gwalior, Madhya Pradesh, has been appropriately considered by
the Trial Court at Firozabad in Sessions Trial No. 753 and 753A of
2008. However, the said plea of alibi was outrightly rejected by the
Trial Court by way of its well-reasoned judgment. The Trial Court
categorically observed that the accused Ashok Dixit in connivance
with the police officials of the Murar Police Station, Gwalior had
managed to get a false case registered under Case Crime No. 967
of 2007 related to Section 34 of the Excise Act. The Trial Court
had further observed that during the investigation, the presence
and arrest of Ashok Dixit in Murar, Gwalior was found to be false &
bogus and therefore, charge sheet came to be filed against those
police officials for acting in collusion with Ashok Dixit. Furthermore,
those police officials have also been suspended and a departmental
enquiry has been initiated against them. Therefore, it was submitted
that the respondent no. 1 cannot assert that he has been erroneously
implicated in Case Crime No. 617 of 2007 registered for the offence
[2024] 12 S.C.R.
791
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
under Sections 147, 148, 149, 307, 302, 201 & 120-B of IPC with
the Dakshin Police Station, Firozabad, Uttar Pradesh.
22. The counsel submitted that the High Court fell in serious error while
passing the impugned order. The High Court could be said to have
travelled beyond its jurisdiction by quashing the criminal proceedings
against the respondents on the ground that the Trial Court has already
decided the case against Ashok Dixit and the other accused. The
Trial Court in Sessions Trial Nos. 753 and 753A of 2008 respectively
arising out of Case Crime No. 617 of 2007 held Ashok Dixit guilty
of the offence of murder of the appellant's brother.
23. The counsel submitted that the High Court erroneously quashed the
criminal proceedings against the respondents saying that the accused
respondents being public servants, the sanction to prosecute for the
alleged offence is a must. It was submitted that the act of hatching a
conspiracy to commit murder and creating a plea of alibi by instituting
a false case, cannot be said to be done in the exercise of discharge
of official duty. It was further submitted that no sanction is required
under Section 197 CrPC to prosecute an erring Government official/
respondent no.1 herein for the reason that the respondent no. 1
was not posted at the Murar Police Station, Gwalior where the Case
Crime No. 967 of 2007 was registered.
24. It was also submitted that the respondent no. 1 had managed with
the police officials of the Murar Police Station, Gwalior, to get a false
FIR being Case Crime No. 967 of 2007 registered under Section 34
of the Excise Act and thereby falsely showed the presence of Ashok
Dixit at Murar, Gwalior on 12.10.2007 at 09:30 am i.e., on the same
day on which the Case Crime No. 617 of 2007 was registered at
the Dakshin Police Station, Firozabad in respect of the murder of
the appellant's brother. Furthermore, the respondent no. 1 had also
influenced the other respondents to release a person under the
Excise Act from the Thatipur Chowki of the Murar Police Station
without producing the said person before the concerned court, in
order to save Ashok Dixit.
25. The learned counsel relied upon the Police statements of Ramesh
Yadav and Barelal dated 25.10.2008. They as independent witnesses
have categorically stated that while they were at Thatipur, Gwalior,
"Niranjan Upadhyay came out from car along with other person and
said that Ashok Dixit you do not worry, I will protect you from murder
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case but you follow me and starts roaming in Thatipur, Gwalior
along with 10-12 cartons of whisky....". The same makes it clear
that the respondent no. 1 was also actively involved in the lodging
of a false FIR.
26. In such circumstances referred to above, the learned counsel
submitted that there being merit in his appeal, the same may be
allowed and the impugned order passed by the High Court be set
aside.
C.
SUBMISSIONS OF BEHALF OF THE RESPONDENT NO. 1
27. Mr. R. Basant, the learned senior counsel appearing for the respondent
no. 1 submitted that there is nothing to indicate that the respondent
no. 1 was directly or indirectly responsible for the registration of Case
Crime No. 967 of 2007 in any manner, since he was neither posted at
the Murar Police Station nor he had instructed any of the concerned
officials to register such an FIR. In fact, the respondent no. 1 was
posted at District Shivpuri which is 120 kms away from Gwalior at
the time of filing the Case Crime No. 967 of 2007 on 12.10.2007.
28. The counsel submitted that the respondent no. 1 had neither filed
the FIR in Case Crime No. 967 of 2007 at the Murar Police Station,
Gwalior nor was he associated with the said police station in any
manner. However, assuming without conceding that the said FIR was
registered at the behest of respondent no. 1, sanction for prosecution
with respect to Case Crime No. 617 of 2007 is required. It is an
admitted fact that sanction was refused by the D.I.G., Gwalior vide
its letter dated 02.08.2008.
29. The counsel further submitted that there are bleak chances of
conviction of the respondent no. 1 for the following reasons - (a) the
respondent no. 1 was not posted at the Murar Police Station, Gwalior
where the Case Crime No. 967 of 2007 was registered, (b) the
respondent no. 1 is 72 years old and no purpose would be served
if the respondent no. 1 was made to face trial at this stage when
the Case Crime No. 617 of 2007 was admittedly filed in the 2007,
(c) the Trial Court has already convicted all the accused including
Ashok Dixit by way of its judgment in 10.07.2015, (d) respondent
no. 1 has retired from Police service in 2015 and 9 years have
passed since then, (e) No departmental inquiry was initiated against
respondent no. 1 for the alleged act of registration of Case Crime
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793
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
No. 967 of 2007 at the Murar Police Station, Gwalior, and (f) there
is nothing to indicate that the respondent no. 1 is related to the
accused Ashok Dixit.
30. The counsel submitted that the charge sheet should be read as a
whole and there exists no circumstance or evidence to warrant any
assumption of involvement of respondent no. 1 in connection with
Case Crime No. 617 of 2007 for the alleged offence of conspiracy
to commit murder. This is so because there are only two statements
of witnesses recorded under Section 161 CrPC and such statements
were recorded after a period of one year i.e., on 25.10.2008 from
the date of registration of case Crime No. 617 of 2007 i.e., on
12.10.2007. These two statements are the sole basis for instituting
a prosecution against the respondent ro. 1. Furthermore, the said
witnesses were not examined in the trial whereby the 12 accused
including Ashok Dixit stood convicted vide order dated 10.07.2015.
31. It was also submitted that there is a material contradiction in the
case of the prosecution. The statements of the two witnesses i.e.,
Ramesh and Barelal suggest that the respondent no. 1 was seen
with Ashok Dixit in Gwalior since they had verbatim deposed that
they had heard respondent no. 1 telling Ashok Dixit that they would
create a false plea of alibi. However, the eyewitnesses have all
deposed that Ashok Dixit was present at the place of the incident
in Firozabad where the firing had occurred. These two contradictory
statements confirm the presence of Ashok Dixit in Firozabad and
also in Gwalior and are therefore, ex-facie derogatory to each other.
32. The counsel submitted that Section 201 CrPC would not apply to
the instant facts and circumstances. There is no allegation that the
respondent no. 1 had conspired with the other co-accused persons
for the offence of murder and the only allegation that surfaces
from the charge sheet is that a false alibi was provided in order
to shield Ashok Dixit by registering an FIR under the Excise Act
in Gwalior. The said alleged act was made after the commission
of the offence of murder and there is nothing on record to even
remotely suggest that the respondent no. 1 had knowledge about
the incident of murder.
33. In light of the above, the counsel submitted that the impugned
Judgment and Order of the High Court quashing the criminal
proceedings against the respondent no. 1 may not be interfered with.
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D.
SUBMISSIONS OF BEHALF OF THE RESPONDENT NOS.
3, 4 AND 5.
34. Ms.