ORDER
1. Through this writ petition, the petitioner has challenged the propriety of a sanction under Section 197, Cr.P.C. whereby his prosecution in case Crime No. 35 of 1997 Under Sections 302, 217, 218, 201, 120B, 176 and 177 read with Section 34, IPC has been permitted to be taken up. The sanction order is at Annexure 11 to the writ petition and it was issued under the orders of the Governor of Uttar Pradesh by the Pricipal Secretary of Govt. of U. P. in the Home (Police) Section 3 vide No. 1613 P-VI-P-398 dated Lucknow 2nd November, 1998.
2. The sanction order indicates the alleged commission of an offence on the night between the 28th February and 1st March, 1997 for which the FIR in case crime No. 35 of 1997 was registered on the information of one Rulia Singh concerning killing of Kuldeep Singh and others by certain persons in police uniform. The sanction order further indicates that investigation had disclosed that the present petitioner had been the Senior Superintendent of Police at Saharanpur and he was one of the police officers who had chased the deceased persons and the gunner of the Senior Superintendent of Police had opened fire and caused the death of Kuldeep and others. The sanction order further indicated that prima facie materials were there to suggest involvement of Harish Chandra Singh and others in the aforesaid offence and after a careful study of the materials, the State Government was satisfied that the present petitioner and others should be prosecuted before a competent Court for the above offences. Accordingly, the Governor, in exercise of his powers under Section 197, Cr.P.C. read with Notification No. 1814/3/VI-538-71 dated 30-1-75, sanctioned the prosecution.
3. The petitioner challenged the competence of the Governor to sanction prosecution in the instant case in the light of the proviso to Section 197(1), Cr.P.C. The provisions of Section 197(1), Cr.P.C. along with the proviso is quoted below :
197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Governor is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: -
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.
(2)...
4. This proviso was inserted into the Code of Criminal Procedure by the amending Act No. 43 of 1991 w.e.f. 2-5-91. It was argued on behalf of the petitioner that the offence was allegedly committed by a public servant during a period while a proclamation under Article 356 of the Constitution was in force in the State of Uttar Pradesh and, as such, in clause (b) of 197(1) of Cr.P.C. the expression "State Government" is to be substituted by the expression "Central Government". There is no denial that the applicant had been a member of an all-India service, the Indian Police Service, and was at the relevant time posted as a Senior Superintendent of Police and, as such, he was a public servant not removable from his office save without the sanction of the Government. The petitioner was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty and at the time of the commission of the alleged offence he was employed in connection with the affairs of the State of U. P.
5. Papers have been brought on record to show that by a proclamation dated 18-10-1995 the President of India (then Sri Shanker Dayal Sharma) had exercised his powers under Article 356 of the Constitution and proclaimed to assume to himself as the President of India all functions of the Government of the State of Uttar Pradesh and this proclamation was withdrawn by another proclamation dated 21st March, 1997 by the President (then also Sri Shanker Dayal Sharma). The date of the alleged offence is very much within the period when the proclamation under Article 356 of the Constitution was in force. Thus there is no escape from the conclusion that the proviso to Section 197(1) of the Cr.P.C. was squarely applicable to the present circumstances and it was the Central Government which could have sanctioned the prosecution.
6. Learned AGA was confronted with this question on the very first day of hearing and he sought time to file a counter-affidavit and it was directed that the counter-affidavit should confine to the question of proclamation under Article 356 of the Constitution and its revocation and on the point of the proviso to Section 197(1), Cr.P.C. In the counter-affidavit that was sworn by Sri A. K. Pandey, under Secretary (Home), Govarnment of U. P., it was stated that the proclamation under Article 356 of the Constitution was issued on 18-10-1995 and in clause (c)(i) of the proclamation so issued, it was indicated that in exercise of functions and powers assumed to himself by virtue of the aforesaid proclamation it would be lawful for the President to act to such an extent as he thought fit through the Governor of the State. The learned Addl. Advocate General proposed to argue that this clause had empowered the Government to act an agent of the President and the sanction was given in that capacity only and it was not violative of the proviso to Section 197(1) of the Cr.P.C. The office of the Governor is a constitutional one and he does not become an agent of the President under the frame of the Constitution merely because the President appoints the Governor or merely because the Governor holds the office at the pleasure of the President. Even if it is conceded for the sake of argument that while proclamation under Article 356 of the Constitution is in operation, the President could act through the Governor and in that light the Governor is the agent of the President, this interpretation may not be available after the proclamation is revoked. The date of commission of the alleged offence was during the subsistence of the proclamation and, as such, Central Government was the proper authority to accord sanction. The sanction order itself was passed after the revocation of the proclamation and it does not indicate anywhere that the Governor was still acting as an agent of the President, rather it clearly shows the satisfaction on the part of the State Government about the necessity of a sanction.
7. In our view, in strict compliance of the provison to Section 197(1), Cr. P.C. the Central Government would be the proper authority to accord sanction and not the State Government as on the date of the Commission of the alleged offence a proclamation under Article 356 of the Constitution was in force in the State of Uttar Pradesh and the President of India had proclaimed to have assumed to himself all the executive powers of the State Government. The sanction order by the Governor as per Annexure 11 to the writ petition is thus untenable in law and is quashed. We make it clear that we have not spoken anything on the merits of the sanction otherwise than the points discussed and in no way this order may be deemed or read as causing any reflection on the validity of recording of sanction by the competent authority, and it will be for either party to agitate such points before the proper authority.
8. The petition stands disposed of.