OM PRAKASH & ORS.versusSTATE OF JHARKHAND THROUGH THE SECRETARY, DEPARTMENT OF HOME, RANCHL-I & ANR.

                    [2012] 9 S.C.R. 125


                  OM PRAKASH & ORS.                              A
                              v.
 STATE OF JHARKHAND THROUGH THE SECRETARY,
     DEPARTMENT OF HOME, RANCHl-1 & ANR.
       (Criminal Appeal No. 1491 of 2012 etc.)
                                                                 B
                  SEPTEMBER 26, 2012

 [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

    Code of Criminal Procedure, 1973:
                                                                 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      F
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
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.

        Dismissing the appeal filed by the complainant and
8
    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]

     2.3. From the two FIRs, it is clear that the criminals
                                                                B
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. (respondent-
accused) 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         E
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
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]

         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
H
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] [154-
C]

     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]
                                                                E
    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]

     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.          A
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      B

  2004 (3) SCR 504             Relied on          Para 29

  AIR 1939 FC 43               Referred to        Para 30

  (1955) 2 SCR 925             Followed           Para 31
                                                               c
  (2002) 6 sec 543             Distinguished      Para 32

  1974 (1) SCR 559             Distinguished      Para 33

  1964 SCR 671                 Distinguished      Para 34
                                                               D
  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           E
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                              F
Crl. A. No. 1492 of 2012.

     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
 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 B
 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
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 F
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          H
    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/
  7/2004, on 31 /8/2004, three challans were filed against
0
  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 Punjab 6 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.                                                 G
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 ..                                              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.

           12. Certain material facts which can be gathered from the
8
    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,       F
SHO, D.K. Srivastava, PO Sonari also came there along with
other police personnel. Dy.S.P. Rajiv Ranjan Singh gave a call
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.

           15. Some of the articles seized by the police are
D               described in the seizure memo as under:

          "Details of seized items:

           (i)      9 mm empty cartridge lying around the Chabutara
                    - 6 nos.
E
           (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.

           (iv)     A iron made pistol lying along the wheel of
                    motorcycle - 'Made in Western Germany Auto
G
                    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
H
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                                             E

    (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
                                                                    F
            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
            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. An A TM Card of
            HDFC Bank of Amit Pratap Singh bearing
                                                                    H
    146           SUPREME COURT REPORTS            [2012] 9 S.C.R.


A                  no.4386241704739313, two telephone diaries, one
                   Receipt Book of Jamshedpur Cooperative College
                   bearing no.02192 of Amit Pratap Singh 9, A-1 Roll
                   No.337, a railway ticket of Bhagalpur Surat
                   Express train no.9048 dated 28.6.2004 for Rs.781
B                  of PNR No.613-9472666 from Jamalpur Junction
                   to Baxar and other papers.

          (xi)     xxx xxx xxx

          (xii)    xxx xxx xxx
c
          (xiii) In the South-West across the road along the river
                 - without number plate Hero Honda Splendor
                 bearing    Engine     no.18E00877      Chessis
                 no.01 E20F50766
D
          (xiv) On the side of right hand of dead body of deceased
                Babloo Prasad, one iron made pistol (mauser) with
                inscription of 'State Property of the Italy Government
                CAL 765 A57391' on the body. On the left side of
                the barrel, CAL 9 mm A 57391' and on the right
E               side of body, 'Auto Pistol 9 round only for public
                supply' written on it. Size measurement - 9 finger
                But with 6 finger magazine and one live cartridge
                lying along the dead body and 5 used cartridges
                of 7.65 bore spread all along.
F
          (xv)     xxx xxx xxx

          (xvi) xxx xxx xxx

          (xvii) xxx xxx xxx
G
          (xviii) xxx xxx xxx

          (xix) In the South - 9 mm used cartridges- total 14 nos.
                spread all along.

H         (xx)     One bullet from Sumo."
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT, 14 7
DEPTT OF HOME, RANCHl-1 [RANJANA PRAKASH DESAI, J.]

      16. This seizure memo, in our opinion, indicates that the A
 criminals hadused motor cycles and they were armed with
 deadly fire arms. Three of the motor cycles were found at the
 scene of offence. The fire arms used by the criminals were of
 foreign make. There is no reason to doubt the veracity of this
 seizure memo because it is difficult for the police to concoct B
 such a scene and plant such weapons.

        17. From the two FIRs, it is clear that the criminals riding
  on the motor cycles armed with deadly firearms had attacked
  the house of businessman Naredi. Naredi lodged a complaint
  at Vistupur Police Station. Upon receiving information, the C
  police machinery had swung into action. Dy.S.P. Rajiv Ranjan
  Singh left his office along with his team to trace the criminals.
  They could trace the criminals. They asked the criminals to
  surrender. The criminals instead of surrendering fired at them.
  The police had to launch a counter attack to save themselves D
  and also to nab the criminals, which was their legal duty and in
  this counter attack, four of the criminals received bullet injuries
. and succumbed to those injuries. The death of four criminals
  in the firing was preceded by an attack by them on
  businessman Naredi's house and also an attack on the police E
  personnel.There is no doubt that the criminals had set out on a
  mission to attack Naredi's house so as to recover ransom.
  From the weapons found lying at the scene of occurrence, we
  feel that the criminals had taken to the life of crime and were
  not novices. The past record of the criminals support this F
  conclusion of ours.

      18. In this connection, it is necessary to refer to the affidavit
 of Dy. S.P. Mr. S.K. Kujur. It brings certain important facts on
 record. Mr. Kujur has begun by describing the attack made by G
 the deceased along with his friends on businessman Jeevan
 Naredi for extortion on the night of 117/2004 at around 9.15 p.m.
 He has referred to Jeevan Naredi's FIR lodged with Bistupur
 Police Station which was registered as Bistupur Police Station
 Case No.134 of 2003. He has then stated how after the incident
                                                                        H
    148        SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A   the criminals fled from the house of Jeevan Naredi and how after
    receiving information about the firing incident, Dy.S.P. Rajiv
    Ranjan Singh and his police party chased them. He has also
    stated that in the encounter, four criminals died and two
    managed to escape. He has described the weapons and other
B   articles which were seized from the place of occurrence. He
    has stated that all the criminals were members of the dreaded
    criminal Akhilesh Singh's gang. He has further stated that after
    the incident, senior police officers reached the place of
    occurrence and the then S.P., East Singhbhum Mr. Arun Oraon,
c   l.P.S. supervised the case. The inquest was done by the
    Magistrate and FIR was registered on the basis of self
    assessment of Dy.SP (Hq.), which was registered as Sonari
    P.S. Case No.53 of 2004 dated 2/7/2004 u/s. 307/427/353/34
    IPC read with Section 25(1 b)(A)/26/27/35 of the Arms Act
    corresponding to G. R. Case No.1065 of 2004. He has
0
    confirmed that on the written request made by the
    complainant's son-in-law Mr. Sanjay Narayan Singh, dead body
    of deceased Munna Singh was handed over to him after the
    postmortem examination was done and it was finally cremated
    at Parvati Ghat. Relevant documents are annexed to the
E   affidavit. He has laid stress on the fact that the complainant filed
    his complaint 23 days after the incident. He has added that the
    case was supervised by the then S.P. Mr. Arun Oraon and after
    due investigation, charge sheet has been submitted against the
    deceased criminals showing them as dead accused.
F
        19. After setting out the activities of Akhilesh Singh Gang,
    Dy.S.P. Kujur has given a chart indicating the cases registered
    against the deceased criminals. It reads thus:

G   "Accused Munna Singh (since deceased).

          a.    Sakchi P.S. Case No.208/02 u/s. 307/34 l.P.C. &
                27•Arms Act later on converted to u/s. 1.P.C.

          b.    Sakchi P.S. Case No.144/03 u/s. 324/307/367/34
H               l.P.C. and section 27 Arms Act.
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 149
DEPTI. OF HOME, RANCH!-1 [RANJANA PRAKASH DESAI, J.]

    c.   Telco P.S. Case No.85/04 under section 392 of the   A
         Indian Penal Code.

    d.   Telco P.S. Case No.109/04 u/s. 379 l.P.C. and
         section 392 l.P.C.

    e.   Adityapur P.S. Case No.139/04 u/s. 392/411 1.P.C.   B

Accused Bablu Prasad alias Suman Kumar (since
deceased).

    a.   Sitaramdera P.S. Case No.62/01 u/s. 379 l.P.C.
                                                             c
    b.   Bistupur P.S. Case No.244/01 u/s. 379 l.P.C.

    c.   Bistupur P.S. Case No.248/01 u/s. 379 1.P.C.

    d.   Sonari P.S. Case No.71/01 u/s.379 l.P.C.
                                                             D
    e.   Sakchi P.S. Case No.179/01 u/s. 379 l.P.C.

    f.   Bistupur P.S. Case No.~49/03 u/s. 3071387/34/
         120(8) IPC and section 27 of the Arms Act.
                                                             E
    g.   Sakchi P .S. Case No.144/03 under sections 324/
         307/387/34 l.P.C. and 27 Arms Act.

    h.   Parsudhih P.S. Case No.182/03 u/s. 414 l.P.C. and
         section 25(1- B)(a)/26/35 of the Arms Act.
                                                             F
    i.   Sonari P.S. Case No.12/04 u/ss. 387/326/307/34
         l.P.C. and section 27 Arms Act.

Accused Prakash Anand alias Ramesh alias Rambo
(since deceased).
                                                             G
    a.   Telco P.S. Case No.266/02 u/s. 379 l.P.C.

    b.   Saraikella P.S. Case No.70/02 u/s. 392/411 l.P.C.

    c.   Telco P.S. Case No.268/97 u/s. 392/411 l.P.C.
                                                             H
    150        SUPREME COURT REPORTS                [2012) 9 S.C.R.


A         d.    Telco P.S. Case No.273/97 u/s. 392/411 l.P.C.

          e.    Bistupur P.> Case No.214/97 u/s. 392 l.P.C.

          f.    Telco P.S. Case No.278/97 u/s. 25(1-b)/A/26 of the
                Arms Act.
B
          g.    Telco P.S. Case No.258/92 u/s.394 and 397 l.P.C.

    Accused Rajiv Kumar Dubey alias Raju Dubey.

          a.    Sadar Chaibasa P.S. Case No.10/01 u/ss. 307/
c               120(8) IPC and section 41516 of Explosive
                Substance Act.

          b.    Bistupur P.S. Case No.125/03 u/s. 25 (1-b)/A/26/
                35 Arms Act.
D
          c.    Adityapur P.S. Case No.139/04 u/ss.392/411
                l.P.C."

          20. Finally, Dy.S.P. Kujur has stated that the State of
    Jharkhand got the entire matter thoroughly inquired into by
E   Deputy Commissioner, East Singhbhoom, Jamshedpur and
    the report of the Deputy Commissioner was sent to the Deputy
    Secretary, Home Department vide letter dated 31/10/2006. A
    copy of the said letter is annexed to the affidavit at Annexure-
    R4 (Colly.). We have carefully perused Annexure-R4 (Colly.)
F   which includes the report submitted by the Dy.S.P., East
    Singhbhoom, Jamshedpur. In his report, Dy.S.P., Jamshedpur
    has, after giving details of the steps taken while conducting the
    inquiry, set out the antecedents of the deceased criminals. So
    far as the allegation that deceased Munna Singh had received
G   bullet injuries on his chest is concerned, it is stated that as per
    the postmortem report, deceased Munna Singh had received
    only three injuries during the encounter - one at the forearm,
    second at the wrist and third on the stomach. After examining
    all the circumstances, in their proper perspective, the report
H   concludes thus:
OM PRAKASH v. STATE OF JHARKHANDTHROUGH SECT, 151
DEPTI. OF HOME, RANCHl-1 [RANJANA PRAKASH DESAI, J.]

    "It is clear from the records and investigation of other       A
    related points that firing was done by the criminals in the
    house of businessman Jiwan Naredi of Bishtupur for
    extortion and after the incident, the police team under the
    supervision of Shri Rajiv Ranjan Singh, Dy.SP (Hqrs)
    chased the criminals while performing their legitimate duty.   B
    Consequently, the encounter took place and Munna Singh,
    (son of the applicant) and three other dreaded criminals
    of the city, associated with Akhilesh Singh gang, were
    killed.

    Therefore, the allegations made by the applicant are           C
    baseless and false. The original application along with
    inspection report is being sent for favour of information."

     21. It appears that the complainant had made a complaint
to the NHRC. Admittedly, on receipt of this complaint, NHRC        D
directed CID to conduct an inquiry. Accordingly, Nagendra
Choudhary, SP, CID, Jharkhand (Ranchi) conducted the inquiry
and submitted his report to the Deputy lnspecrtor General of
Police, CID, Jharkhand, Ranchi. The report is exhaustive and
we have carefully perused it. From the report, it appears that     E
the Inquiry Officer recorded the statement of Krishan Pratap
Singh the brother of deceased Munna Singh. He also recorded
the statements of two independent witnesses namely Moni
Borker and Vijay Singh. These witnesses have confirmed that
the firing incident did take place. The Inquiry Officer also       F
recorded the statements of witnesses to the seizure memo. The
report further states that Mr. Sharma, learned Magistrate (Law
& Order Jamshedpur) came to the spot and prepared the
inquest report. Important extracts from the inquest report are
noted in the report. So far as the deceased is concerned, the      G
inquest report states that he had bleeding wounds on the right
stomach, right leg and near the elbow of the right arm. Injuries
appeared to be bullet injuries. Statement of Dr. Prof. Akhilesh
Kumar Chaudhary attached to MGM Medical College,
Jamshedpur who had performed postmortem of some of the             H
    152       SUPREME COURT REPORTS               [2012] 9 S.C.R.

A deceased criminals was also recorded. It is stated in the report
    that Dr. Chaudhary stated that there was no charring, blackening
  , etc. found on the body which confirms that the bullets were fired
    from some distance. Reference is made to the statement of Dr.
    Lalan Chaudhary who had done postmortem of deceased
B Munna Singh i.e. the son of the complainant. Dr. Lalan
    Chaudhary has stated in his statement that there was no
    charring, blackening on the dead body. Postmortem report is
    also discussed. Similarly there is a detailed discussion on the
    report of the Forensic Laboratory. It is stated that the bullets
c   were fired from the three pistols recovered from the scene of
    occurrence. Statement of Jeevan Naredi, the businessman
    whose house was attacked by the criminals is also recorded.
    Jeevan Naredi has given detailed account as to how the
    criminals fired at his house and fled away from there. After
    considering inquest report, postmortem report, forensic
0
    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 circumstances, the report
    concludes that the encounter was genuine. There is no dispute
E about the fact that NHRC has accepted this report and has also
    come to a conclusion that this is not a case of fake encounter.

          22. We shall now deal with Mr. Gonsalves' attack on the
  police. Mr. Gonsalves contended that the dead body was not
F handed over to the complainant's family. We have already
  referred to the affidavit in reply filed by Mr. S.K. Kujur, Dy.S.P.
  From his affidavit and the documents annexed to it, it is clear
  that on the written request of the complainant's son-in-law
  Sanjay Narayan Singh on 2/7/2004, the dead body of
G deceased Munna Singh was handed over to him in the
  presence of Ripunjay Kumar Singh and Asha Shankar Singh.
  The body was finally cremated at Parvati Ghat by members of
  the family of deceased Munna Singh. Our attention is drawn to
  the copy of the application made by the brother-in-law of
H deceased Munna Singh requesting that the dead body may be
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 153
DEPTT OF HOME, RANCHl-1 [RANJANA PRAKASH DESAI, J.]

handed over to him for cremation. It is counter signed by the      A
brothers of deceased Munna Singh. The dead body was handed
over to Sanjay Narayan Singh, the brother-in-law of deceased
Munna Singh and a receipt dated 02/07/2004 to that effect was
given by him to the police. The copy of the receipt is seen by
us. It is counter signed by Asha Shankar Singh, brother of         B
deceased Munna Singh. There is on the record a declaration
made by the relative of deceased Munna Singh - one Raja
Narayan Singh that deceased Munna Singh was cremated at
Parvati Ghat, Bistupur, Jamshedpur. The declaration is made
on the certificate issued by Parvati Ghat authorities.             c
      23. Mr. Gonsalves contended that deceased Munna
Singh's name was shown in a case registered in 1994 when
he was only 9 years old. This shows that the police have
fabricated a case to show that he was a dreaded criminal. We
notice that in the postmortem notes, his age is shown as 28        D
years. It is not the case of the police that deceased Munna
Singh was involved in any case of the year 1994. It is true that
in the copy of tne letter addressed by Dy.S.P. Jamshedpur to
Superintendent of Police, Jamshedpur, Sonari P.S., Case
No.15 of 1994 dated 6/3/1994 is shown to have been                 E
registered under Section 392 of the IPC against deceased
Munna Singh. But as of today, it is the case of the police that
he was not involved in this case. Perhaps, the information was
related to some other person or the information was incorrect.
It is not possible for us to hold that the police have made an     F
attempt to involve him in Case No.15 of 1994. List of several
other serious crimes in which according to the police, the
deceased was involved, is given by Dy.S.P. Mr. Kujur in his
affidavit in reply. We have reproduced it in the earlier part of
this judgment.                                                     G

     24. The contention 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 speaks
about the recovery of blood stained soil. The inquest report,      H
    154      SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A 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 four days, that does not disprove the
B occurrence.

       25. It is then contended that police movements are not
  recorded in police diaries. This is not correct. Extracts of police
  station diary of P.S. Sonari show the police movements of the
C relevant period. These extracts are annexed to the affidavit of
  Dy. S.P. Kujur.

        26. It was submitted that the deceased received injuries
  on chest. The doctors' statements have been reproduced in the
  CID report. It is stated by the doctors that there was no
D blackening or charring suggesting that the deceased were shot
  at from a close range. The postmortem report also does not
  show that deceased Munna Singh had received chest injuries.
  It is true that the police personnel did not receive any bullet
  injuries. However, the Sumo vehicle was hit by a bullet.
E Mercifully, the police did not receive injuries because they had
  taken safe positions. From this, it cannot be said that no such
  incident had taken place. It is submitted that there are no
  independent eye witnesses supporting the version of police.
  This is wrong. Statements of Moni Boker and Vijay Singh have
F been recorded under Section 164 of the Code. This is evident
  from the CID report.

       27. It is submitted that all challans in respect of deceased
  Munna Singh were filed on the same day. There is a reasonable
  explanation given for this. The deceased was wanted in the
G 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
  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. In the circumstances, we are
H unable to come to a conclusion that this was done purposely
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 155
DEPTT. OF HOME, RANCHl-1 [RANJANA PRAKASH DESAI, J.]
with mala fide intention to create record against the deceased.       A

      28. Mr. Gonsalves contended that nails of the deceased
were blackened. This is not borne out by the postmortem report
or the inquest conducted by the Magistrate. ·it is true that the
postmortem was not videographed. In this case, the Magistrate
conducted the inquest. The CID has fully investigated and
                                                                      B
submitted its report stating that it was a genuine encounter.
NHRC is also satisfied with the postmortem. Therefore, it is not
possible to infer that post-mortem was not videographed
because the police wanted to suppress something. We would
like to make it clear that we have independently examined the         C
relevant documents, like FIRs, postmortem notes, inquest
report, seizure memo and extracts of FSL report and we are
of the view that this is not a case of false encounter. We reject
the case of the complainant that the police are guilty of killing
deceased Munna Singh in cold blood in fake encounter.                 D

      29. The true test as to whether a public servant was acting
or purporting to act in discharge of his duties would be whether
the act complained of was directly connected with his official
duties or it was done in the discharge of his official duties or it   E
was so integrally connected with or attached to his office as to
be inseparable from it. (K. Satwant Singh). The protection given
under Section 197 of the Code 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
                                                                      F
and is not merely a 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 protection.    G
(Ganesh Chandra Jew). If the above tests are applied to the
facts of the present case, the police must get protection given
under Section 197 of the Code because the acts complained
of are so integrally connected with or attached to their office
as to be inseparable from it. It is not possible for us to come
                                                                      H
    156       SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A to a conclusion that the protection granted under Section 197
  of the Code is used by the police personnel in this case as a
  cloak for killing the deceased in cold blood.

       30. We must now deal with the submission of Mr.
  Gonsalves that the question of sanction must be studied with
8 reference to the complaint and not with reference to the
  documents produced by the accused to set up a plea of self
  defence. In support of this submission, Mr. Gonsalves heavily
  relied on Hori Ram Singh. In that case, the Federal Court was
  considering the expression "Act done or purporting to be done
C in execution of duty as servant of Crown" appearing in Section
  270(1) of the Government of India Act, 1935. The following
  observations of the Federal Court are material:

          "As the consent of the Governor, provided for in Section
D         270(1 ), is a condition precedent to the institution of
          proceedings against a public servant, the necessity for
          such consent cannot be made to depend upon the case
          which the accused or the defendant may put forward after
          the proceedings had been instituted, but must be
E         determined with reference to the nature of the allegations
          made against the public servant, in the suit or criminal
          proceedings. If these allegations cannot be held to relate
          to "any act done or purporting to be done in the execution
          of his duty" by the defendant or the accused "as a servant
          of the Crown," the consent of the authorities would, prima
F
          facie, not be necessary for the institution of the
          proceedings. If, in the course of the trial, all that could be
          proved should be found to relate only to what he did or
          purported to do "in the execution of his duty," the
          proceedings would fail on the merits, unless the Court was
G         satisfied that the acts complained of were not in good faith.
          Even otherwise, the proceedings would fail for want of the
          consent of the Governor, if the evidence established only
          official acts."

H         31. In Matajog Dobey, the Constitution Bench of this court
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT, 157
DEPTI. OF HOME, RANCHl-1 [RANJANA PRAKASH DESAI, J.]

was considering what is the scope and meaning of a somewhat           A
similar expression "any offence alleged to have been
committed by him while acting or purporting to act in discharge
of his official duty" occurring in Section 197 of the Criminal
Procedure Code (Act V of 1898). The Constitution Bench
observed that no question of sanction can arise under Section         B
197 unless the act complained of is an offence; the only point
to determine is whether it was committed in the discharge of
official duty. on· the question as to which act falls within the
ambit of above-quoted expression, the Constitution Bench
concluded that there must be a reasonable connection between          c
the act and the discharge of official duty; the act must bear such
relation to the duty that the accused could lay a reasonable, but
not a pretended or fanciful claim that he did it in the course of
performance of his duty. While dealing with the question whether
the need for sanction has to be considered as soon as the
                                                                      0
complaint is lodged and on the allegations contained therein,
the Constitution Bench referred to Hori Ram Singh and
observed that at first sight, it seems as though there is some
support for this view in Hori Ram Singh because Sulaiman, J.
has observed in the said judgment that as the prohibition is          E
against the institution itself, its applicability must be judged in
the first instance at the earliest stage of institution and
Varadachariar, J. has also stated that the question must be
determined with reference to the nature of the allegations made
against the public servant in the criminal proceeding. It is
pertinent to note that the Constitution Bench has further             F
observed that a careful perusal of the later parts of the judgment
however show that learned judges did not intend to lay down
any such proposition. The Constitution Bench quoted the said
later parts of the judgment as under:
                                                                      G
     "Sulaiman, J. refers (at page 179) to the prosecution case
     as disclosed by the complaint or the police report and he
     winds up the ·discussion in these words: "Of course, if the
     case as put forward fails or the defence establishes that
     the act purported to be done is in execution of duty, the        H
    158        SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A         proceedings will have to be dropped and the complaint
          dismissed on that ground". The other learned Judge also
          states at page 185, "At this stage we have only to see
          whether the case alleged against the appellant or sought
          to be proved against him relates to acts done or purporting
B         to be done by him in the execution of his duty". It must be
          so. The question may arise at any stage of the
          proceedings. The complaint may not disclose that the act
          constituting the offence was done or purported to be done
          in the discharge of official duty; but facts subsequently
c         coming to light on a police or judicial inquiry or even in the
          course of the prosecution evidence at the trial, may
          establish the necessity for sanction. Whether sanction is
          necessary or not may have to be determined from stage
          to stage. The necessity may reveal itself in the course of
          the progress of the case."
D
       The legal position is thus settled by the Constitution Bench
  in the above paragraph. Whether sanction is necessary or not
  may have to be determined from stage to stage. If, at the outset,
  the defence establishes that the act purported to be done is in
E execution of official duty, the complaint will have to be
  dismissed on that ground.

        32. In Raj Kishor Roy, the appellant had filed a complaint
  against respondent 1 therein, who was a police officer that he
F had assaulted him and leveled false charges against him. The
  Judicial Magistrate, Bhagalpur, issued summons. Respondent
  1 filed a petition for quashing the order issuing summons on
  the ground that sanction under Section 197 of the Code has
  not been obtained. The High Court quashed the said order on
G the ground that there was no sanction to prosecute respondent
  1. In the facts before it, this court observed that the question
  whether respondent 1 acted in discharge of his duty, could not
  have been decided in a summary fashion. This court observed
  that it was the appellant's case that respondent 1 had brought
H an illegal weapon and cartridges and falsely shown them to
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 159
DEPTI. OF HOME, RANCHl-1 [RANJANA PRAKASH DESAI, J.]

have been recovered from the appellant. This court observed                A
that this is the type of case where the prosecution must be given
an opportunity to establish its case by evidence and an
opportunity be given to the defence to establish that he had
been acting in the official course of his duty. There is thus a
clear indication that this court had restricted its observations           B
to the facts before it. It is pertinent to note that this court referred
to the Constitution Bench Judgment in Matajog Dobey and
observed that in that case, the Constitution Bench has held that
need for sanction under Section 197 of the Code is not
necessarily to be considered as soon as the complaint is                   C
lodged and on the allegations contained therein and the
question may arise at any stage of the proceedings.

      33. In Pukhraj, the appellant, who was a clerk in the Head
Post Office, Jodhpur had filed a complaint against respondent
2, who was the Post Master General, Rajasthan, alleging                    D
offences under Sections 323 and 502 of the IPC. Respondent
2 filed an application praying that the court should not take
cognizance of the offence without the sanction of the
Government as the acts alleged, if at all done by him, were
done while discharging his duties as a public servant. The                 E
Rajasthan High Court held that respondent 2 could not be
prosecuted unless prior sanction of the Central Government has
been obtained. The order taking cognizance was quashed. This
court referred to Hori Ram Singh as well as Matajog Dobey.
This court reiterated that whether sanction is necessary or not            F
may have to be decided from stage to stage but in the facts of
the case before it, this court set aside the High Court's order.

     34. In Nagraj, the appeal was directed against the order
of the High Court rejecting the reference made by the Sessions             G
Judge Shimoga Division recommending the quashing of the
commitment order of the Magistrate committing the accused
to the Sessions trial of offences under Sections 307 and 326
of the IPC on the ground that the Magistrate could not have
taken cognizance of the offences without sanction of the State
                                                                           H
    160      SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A Government in view of the provisions of Sections 132 and 197
  of the Criminal Procedure Code of 1898. The appellant therein
  was a Sub-Inspector. He along with another person had severely
  beaten up one Thimma and had wantonly fired from revolver
  at other persons. It was contended that if the question of
8 sanction is not decided in the very first instance when a
  complaint is filed or when the accused alleges that he could
  not be prosecuted for the alleged offences without sanction of
  the Government, the protection given by law will be nugatory
  as the object of giving this protection is that the police officer
C is not harassed by any frivolous complaint. It is important to note
  that this court in the context of the peculiar facts before it, noted
  that there may be some such harassment of the accused, but
  it had no means to hold in the circumstances alleged that the
  prosecution of the appellant was in connection with such action
  as the complaint did not disclose the necessary circumstances
D indicating that fact and the bare word of the accused cannot
  be accepted to hold otherwise. It is in this background that the
  court observed that the jurisdiction of this court to proceed with
  the complaint emanates from what is alleged in the complaint
  and not from what is finally established in the complaint as the
E result of the evidence recorded. Pertinently this court made
  reference to the Constitution Bench judgment in Matajog Dobey
  where it is observed that whether sanction is necessary or not
  may have to be determined from stage to stage. In our opinion,
  the observation of this court that the mere allegation made by
F the appellant-police officer that the action taken by him was in
  performance of his duty, will not force the court to throw away
  his complaint of which it had properly taken cognizance on the
  basis of the allegations in the complaint will have to be read
  against the peculiar facts of the case and not as stating
G something which runs counter to the law laid down by the
  Constitution Bench in Matajog Dobey.
        35. In Abdul Wahab Ansari v. State of Bihar & Anr. 10 , this
  court was again considering the question as to when the plea
H 10. c2000) s sec 500.
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT, 161
DEPTI. OF HOME, RA.NCHl-1 [RANJANA PRAKASH DESAI, J]
that sanction was required to be obtained under Section 197         A
(1) of the Code can be raised. This Court reiterated that
previous sanction of the competent authority being a
precondition for the court in taking cognizance of the offence if
the offence alleged to have been committed by the accused
can be said to be an act in discharge of his official duty, the     B
question touches the jurisdiction of the Magistrate in the matter
of taking cognizance and, therefore, there is no requirement that
an accused should wait for taking such plea till the charges are
framed.

      36. In our opinion Sankaran Moitra puts doubts, if any, to
                                                                    c
rest. In that case the complainant had filed a complaint before
the Deputy Comissioner of Police that she had come to know
from the members of the public that her husband was beaten
to death by the police. She arrayed Assistant Commissioner
of Police and other police personnel as accused and prayed          D
for stern action against them. Accused 1 filed a petition under
Section 482 of the Code before the High Court for quashing
of the complaint on the ground that the complaint could not have
been entertained for want of sanction under Section 197(1) of
the Code. The High Court dismissed the petition. Before this        E
Court it was argued that want of sanction under Section 197
of the Code did not affect the jurisdiction of the Court to
proceed, but it was only one of the defences available to the
accused and the accused can raise the defence at the
appropriate stage. This Court considered Hori Ram Singh,            F
Constitution Bench judgment in Matajog Dobey and several
other judgments on the point and rejected the said submission.
We must reproduce the relevant paragraph.

    "Learned counsel for the complainant argued that want of        G
    sanction under Section 197(1) of the Code did not affect
    the jurisdiction of the Court to proceed, but it was only one
    of the defences available to the accused and the accused
    can raise the defence at the appropriate time. We are not
    in a position to accept this submission. Section 197(1 ), its   H
    162        SUPREME COURT REPORTS               [2012] 9 S.C.R.


A         opening words and the object sought to be achieved by
          it, and the decisions of this Court earlier cited, clearly
          indicate that a prosecution hit by that provision cannot be
          launched without the sanction contemplated. It is a
          condition precedent, as it were, for a successful
B         prosecution of a public servant when the provision is
          attracted, though the question may arise necessarily not
          at the inception, but even at a subsequent stage. We
          cannot therefore accede to the request to postpone a
          decision on this question."
c      This Court also observed that postponing a decision on
  the applicability or otherwise of Section 197(1) of the Code can
  only lead tothe proceedings being dragged on in the trial court
  and a decision by this Court here and now would be more
  appropriate in the circumstances of the case especially when
D the accused involved are police personnel and the nature of the
  complaint made is kept in mind.

       37. The upshot of this discussion is that whether sanction
  is necessary or not has to be decided from stage to stage. This
E 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 servant
  was acting in performance of his official duty and is entitled to
F protection given under Section 197 of the Code. It is not
  possible for us 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 inception. The nature of the complaint may
  have to be kept in mind. It must be remembered that previous
G sanction is a precondition for taking cognizance of the offence
  and, therefore, there is no requirement that the accused must
  wait till the charg.es are framed to raise this plea. At this point,
  in order to exclude the possibility of any misunderstanding, we
  make it clear that the legal discussion on the requirement of
  sanction at the very threshold is based on the finding in the
H
OM PRAKASH v. STATE OF JHARKHAND THROUGH SECT., 163
DEPTI. OF HOME, RANCHl-1 [RANJANAPRAKASH DESAI, J.]
earlier part of the judgment that the present is not a case where        A
the police may be held guilty of killing Munna Singh in cold
blood in a fake encounter. In a case where on facts it may
appear to the court that a person was killed by the police in a
stage- managed encounter, the position may be completely
different.                                                               B

     38. 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 put them up for trial. This
court has repeatedly admonished trigger happy police                     C
personnel, who liquidate criminals and project the incident as
an encounter. Such killings must be deprecated. They are not
recognized as legal by our criminal justice administration
system. They amount to State sponsored terrorism. But, one
cannot be oblivious of the fact that there are cases where the
police, who are performing their duty, are attacked and killed.          D
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. Requirement of sanction to prosecute
affords protection to the policemen, who are sometimes                   E
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
establish that their action is indefensible, mala fide and
vindictive, they cannot be subjected to prosecution. Sanction            F
must be a precondition to their prosecution. It affords necessary
protection to such police personnel. Plea regarding sanction
can be raised at the inception.

      39. In our considered opinion, in view of the facts which          G
we have discussed hereinabove, no inference can be drawn
in this case thatthe police action is indefensible or vindictive
or that the police were not acting in discharge of their official
duty. In Zandu Pharmaceutical Works Limited, this Court has
held that the power under Section 482 of the Code should be              H
    164      SUPREME. COURT REPORTS               [2012] 9 S.C.R.


A   used sparingly and with circumspection to prevent abuse of
    process of court but not to stifle legitimate prosecution. There
    can be no two opinions on this, but, if it appears to the trained
    judicial mind that continuation of a prosecution would lead to
    abuse of process of court, the power under Section 482 of the
B   Code must be exercised and proceedings must be quashed.
     Indeed, the instant case is one of such cases where the
    proceedings initiated against the police personnel need to be
    quashed. In the circumstances, we dismiss the appeal filed by
    the complainant Kailashpati Singh. We allow the appeal filed
c   by Om Prakash, Pradeep Kumar, Shyam Bihari Singh and
    Bharat Shukla and set aside the impugned order to the extent
    it dismisses Cr.M.P.No.822 of 2005 filed by them for quashing
    order dated 14/06/2005 passed by Judicial Magistrate, 1st
    Class, Jamshedpur, in Complaint Case No.731 of 2004 issuing
    process against them. We quash Complaint Case No. 731 of
0
    2004 pending on the file of Judicial Magistrate, 1st Class,
    Jamshedpur.

    K.K.T.                                   Appeals disposed of.