JUDGMENT Poonam Srivastava, J.
1. Heard Shri D. S. Mishra, counsel for the applicant and learned A.G.A. for the State.
2. An impleadment application was filed on behalf of the complainant, wife of the deceased, Smt. Shakuntala Devi, on 8.4.2005. Shri V.P. Srivastava. advocate, appears on behalf of the complainant, the newly impleaded opposite party.
3. After arguments were heard on 15.4.200" the order dated 15.3.2004 issuing non-bailable warrant against the applicant, was directed to be kept in abeyance. This interim order was extended from time to time. Finally, the arguments were heard on 27.5.2005, advanced by Shri D.(sic) Mishra on behalf of applicant and Shri V.P. Srivastava for the complainant whose impleadment application was allowed on that date. Learned A.G.A. had undertaken to file Counter affidavit within two weeks during summer vacation and the judgment was reserved. Since, no counter affidavit has been filed, as such, there is no reason for filing rejoinder affidavit by the applicant. However, a counter affidavit has been filed on behalf of complainant, to which, a rejoinder affidavit has also been submitted by Shri D.S. Mishra. The interim order granted on 15.4.2005 is to continue till the date of delivery of judgment. Now. I proceed to decide the matter in absence of counter affidavit on behalf of the State.
4. The applicant has filed this application invoking inherent powers under Section 482 Cr.P.C. challenging the criminal proceedings initiated against the present applicant on the solitary ground of sanction. It is submitted that act alleged against the applicant was done in discharge of his official duties as such until and unless a sanction, as contemplated under Section 197 Cr.P.C. is obtained by the C.B.C.I.D. from the State Government, the proceedings are vitiated and without jurisdiction and liable to be quashed The proceedings include taking of cognizance by the Chief Judicial Magistrate, Ballia in Criminal Case No. 2213 of 2003- State v. Jay Nath Yadav and summoning the applicant as well as all other subsequent proceedings.
5. The facts giving rise to the dispute are that on 26.10.1995. Kripa Shankar Shukla, husband of the newly impleaded party Smt. Shakuntala Devi, was done to depth by Swami Nath Yadav and others. After committing murder, the dead body of the deceased was thrown into a well. The present applicant was posted as Sub Inspector at Police Station Bansdeeh who took over as Investigating Officer. It is alleged that he colluded with the accused in the murder case of Kripa Shanker Shukla and with the help of the doctor who performed autopsy on the body of the deceased, manufactured certain documents in a manner so that death of the deceased appeared to be accidental. This was done with a deliberate and conscious effort to help the accused. The complainant made a representation for change of Investigating Agency and consequently the investigation was handed over to C.B.C.I.D. After completing the investigation, the C.B.C.I.D. submitted charge sheet against the accused. The Investigating Agency was also of the view that the doctor and the present applicant had misused their official powers with view to screen the offenders and created forged documents. The murder case was registered at case rime No. 103 of 1996 under Sections 147 148, 302, 201, 218 and 120B, I.P.C. Perusal of the F.I.R. shows that there were altogether seven named accused. The name of the present applicant was mentioned at serial No. 6 and Dr. Vinod Kumar Rai, Sadar Hospital, Ballia, as arrayed as accused No. 7. The C.B.C.I.D was of the view that the applicant has misused his powers as an Investigating Officer with an ulterior motive and for personal gains with a conscious effort to screen the offenders.
6. The wife of the deceased Smt. Shakuntala Devi approached this Court by filing Criminal Misc. Petition No. 6100 of 1999. Smt. Sakuntala v. State of U.P. and Ors., wherein the present applicant was arrayed as respondent No. 2. The Union Government accorded sanction to prosecute the doctor but the State Government had refused to grant sanction in respect of the present applicant as such the prayer was for according sanction in respect of the present applicant. This application was disposed of finally vide judgment and order dated 9.5.2003. The stand taken by the applicant in the previous application filed at the instance of widow of deceased was, inter alia, that he acted as a public servant in discharge of his official duties as such prior sanction as required Hinder Section 197 Cr.P.C. is essential before the applicant is prosecuted in the criminal case. This Court while disposing of the Criminal Misc. Petition No. 6100 of 1999. has observed in the concluding paragraph of its judgment as under:
"In view of the aforesaid authoritative pronouncement of the Supreme Court, the question in the case on hand, sanction is necessary to prosecute respondent No. 2 should be left open to be decided by the trial court. In that view of the matter, C.B.C.I.D. is directed to lay charge- sheet against respondent No. 2 before the concerned court. So far respondent No. 3 is concerned, Union Government having accorded sanction, there is no legal bar or impediment for the court to proceed with the trial since charge- sheet has already been filed against him."
7. At the time, when this application was disposed of, the Union Government had already accorded sanction for prosecution of Dr. Vinod Kumar Rai and this Court had kept it open for the concerned court to consider the question of according sanction in respect of the present applicant and C.B.C.I.D. was directed to submit charge sheet against respondent No. 2 before the concerned court. This order has been challenged before the Apex Court by filing Special Leave to Appeal (Crl.) No. 3504 of 2003 along with application for stay of the order dated 9.5.2003. The Apex Court issued notices vide order dated 5.9.2003, to the respondents and no stay order was granted. The order dated 9.5.2003 has been challenged in the Apex Court at the instance of the present applicant. The charge sheet was filed against the applicant on 26.9 2003 and learned Chief Judicial Magistrate has taken cognizance on 30.9.2003. Copy of the charge sheet has been annexed as Annexure No. 4 to the affidavit filed with this application. After filing charere sheet, a Criminal Revision No. 1639 of 2004- Jay Nath Yadav v. State of U.P. was preferred on behalf of the present applicant. A counter affidavit was filed by Shri V.P. Srivastava, thereafter the revision as withdrawn and the revisional Court vide order dated 10.3.2005 permitted the applicant to withdraw the revision with a liberty to file application under Section 482 Cr.P.C. and the interim order was discharged This order is annexed as Annexure 10 to the affidavit filed along with this application.
8. The entire argument of Shri D.S. Mishra revolves round the question of grant of sanction under Section 197 Cr.P.C. and continuation of proceedings in absence of a valid sanction is stated to be illegal and vitiated in law. Great emphasis has been laid on concluding part of the judgment dated 9.5.2003 wherein this Court while disposing of the Criminal Misc. Petition No. 6100 of 1999, left it open for the trial court to decide the question of sanction in respect of respondent No. 2 i.e. present applicant. It has been emphasized that though the order dated 9.5.2003. was passed prior to submission of charge sheet and taking of cognizance by the learned Chief Judicial Magistrate, but this part of the order has not been complied with. The State Government has refused to grant sanction in respect of present applicant and thereafter, the learned Magistrate was bound to decide the question of sanction while taking cognizance in the light of observation made by this court in Criminal Misc. Petition No. 6100 of 1999. Shri D.S. Mishra has emphatically argued that the order sheet dated 30.9.2003 shows that the supplementary charge sheet has been submitted and the order is "Darj Register Ho. Patrawali Ka Nakal Taiyar Karai Jawe." Thereafter on 16.12.2003, the record was made available along with necessary copies and the next date was fixed. Finally, non-bailable warrant was issued on 15.3.2004. He has argued that after 16.12.2003 two more dates were fixed i.e. 8.1.2004 and 18.2.2004 and on both the dates, the court had directed for issuing summons. On 18.2.2004 summons were issued fixing 15.3.2004 and on that date when the accused failed to appear, non-bailable warrants were issued. In the circumstances, there are two points canvassed on behalf of the applicant. The first is regarding the grant of sanction and second ground is that despite there being no report that the summons were served, the court should not have issued non bailable warrant and as such issuance of non bailable warrant on 15.3.2004, amounts to miscarriage of justice, hence inherent powers have been invoked for redressal of his grievance.
9. Shri D.S. Mishra has placed reliance and cited a decision Ranjeet Bahadur Srivastava v. State of U.P.. 1992 A.L.J. 281 (paras 2 and 3). It appears that there is no judgment reported in 1992 A.L.J. in this name and, therefore, cannot be considered. The second case cited is Ganga Dhar Janardan Matre v. State of Maharashtra 2005 S.C.C. (Cri) 404 (Para 7 and 9). It is being argued on the basis of aforesaid decisions that non-bailable warrant could not be issued on the basis of an application given by the complainant, widow of deceased, Sakuntala Devi. I have gone through this judgment as well, and I do not find that there is any applicability of the aforesaid decisions to the facts of the present case. In the case of Ganga Dhar Janardan Matre (supra) the Apex Court has ruled that there is no obligation on the Magistrate to concur with the opinion formed by the police and, thus, he is not obliged to accept the police report. In the circumstance, I do not feel that these cases nave any relevance to the facts involved in the present case.
10. I have perused the order dated 15.3.2005. It does not show anywhere that the non bailable warrant has been issued on the basis of an application given by the complainant. In fact the charge sheet was submitted and cognizance was taken on 30.9.2003. Three dates were fixed and only on the fourth date non-bailable warrant was issued I am conscious of the fact that despite non bailable warrants were issued as far back as on 15.3.2004, more than one year has done by but the present applicant, who is a police officer and claims himself to be a responsible officer, has yet not abided by the court's order, instead he is continuously challenging the summoning order at every level . In fact, he is an absconder and the argument that no summons were served on the applicant is of no consequence. In fact the repeated contest at the instance of the applicant is sufficient to establish that he has full knowledge about the ongoing proceedings against him.
11. The second point that has been argued with great emphasis is regarding the grant of sanction. It is submitted that the applicant was appointed as investigating officer. He submitted a final report after completing investigation in discharge of his official duties and on the basis of post mortem report given by the doctor, according to whom the death of the deceased appeared to be accidental. The Union Government granted sanction for prosecution of the doctor who performed autopsy on the body of the deceased as such the applicant who was the Investigating Officer also, acted in his official capacity, therefore, his prosecution could not be initiated without a prior sanction as contemplated under Section 197 Cr.P.C. Besides, this Court whole disposing of Criminal Misc. Petition No. 6100 of 2003 had left it open for the court to decide the matter but while taking cognizance no decision was given by the learned Chief Judicial Magistrate and there is only one word order of taking cognizance. Learned, counsel for the applicant has failed to notice that this Court which disposing of the previous application under Section 482 Cr.P.C., though left it to the trial court to decided the question of sanction in respect of the present applicant but it as no where mentioned at what stage the trial court should consider and pass order regarding the question of grant of sanction. Thus, even if the submission of M.(sic) Misra is accepted that cognizance was taken and summons were issued by the concerned court without any order regarding grant of sanction, could not ipso facto vitiate the entire proceedings. Shri V.P. Srivastava has emphatically disputed the argument of Shri D.S. Mishra. He has placed annexure 7 Ka of the paper book which shows that the present applicant Jay Nath Yadav moved protest application on 31.3.2004, wherein filing of the charge sheet and the Magistrate taking cognizance on the basis of said charge sheet as well as the summoning order was challenged. It was contended on behalf of the applicant that the entire procedure was illegal for want of prior sanction. The court did not accept the argument on behalf of the applicant and protest petition was dismissed as not maintainable. At the time when the protest petition was dismissed the order issuing non-bailable warrant was already in existence. The criminal revision was also moved before the learned Sessions Judge, which was got dismissed as not pressed on 22.4.2004.
12. The sole question that remains to be decided in the present case is that as to whether the prosecution of the applicant can be quashed at this stage for want of necessary sanction under Section 197 Cr.P.C. The argument of the counsel for the applicant is that the entire prosecution is without jurisdiction and is illegal for want of sanction. This question has been decided in a catena of decisions of this Court as well as the Apex Court. Shri D.S. Mishra has cited decisions on the point of sanction and its consequences if no such sanction is granted prior to he prosecution. The cases are; Sri Kailash Sethi v. State -1978 A.C.C. Page 192, P.C. Bajpai v. Rahmanulhaq and Anr. 1986 A.L.J. 81, 1996 A.C.C. 128.
13. The last case cited by the counsel for the applicant is Abdul Wahab Ansari v. State of Bihar and Anr., 2000 Cr.L.J. 4631. The Apex Court observed in paragraph 6 of the said judgment which is quoted below:
"6. Previous sanction of the competent authority being a pre-condition 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 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."
14. The Supreme Court placed reliance on another decision where it was held that legislative mandate engrafted in Sub-section (1) of Section 197 Cr.P.C. debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty. It is, thus, argued that the case of Abdul Wahab Ansari ( supra ) contemplates sanction at the very initial stage and not at the time of framing of the charge. It has been emphatically argued since the applicant was the Investigating Officer, the allegation levelled against him, is in discharge of his official duty, as such, it is manifest that a sanction contemplated under Section 197 Cr.P.C., provides immunity of criminal proceedings.
15. I have carefully considered all the arguments and gone through the various citations. The Apex court in the case of Raj Kishor Roy v. Kamleshwar Pandey and Anr., (2002) 6 SCC 543, has ruled that the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. The prosecution must be given an opportunity to establish its case. The Apex Court has ruled that the question whether sanction under Section 197 Cr.P.C. is essential is a question of fact and differs from case to case. No doubt, the Criminal Procedure Code has made it mandatory that as soon as the allegations made against a Government servant regarding commission of a criminal offence in discharge of his official duty is made then a sanction under Section 197 Cr.P.C. is necessary but it is clearly admitted by the applicant in para 28 that the application for sanction under Section 197 Cr.P.C. moved by the C.B.C.I.D. was refused by the State Government, it is apparent that the State Government after consideration of facts and circumstances of the case, was of the view that the act alleged to have been committed by the present applicant was not in discharge of his official duties but otherwise. He cannot, therefore, seek shelter for want of sanction. The Apex Court has clearly ruled that the question of sanction should be left to be decided after conclusion of the trial because it was of the view that the prosecution must be given opportunity to establish its case. If an allegation is levelled against a public servant he can immediately take shelter under the garb of grant of sanction and escape the procedure of law. If the prosecution is able to establish that the act done by a Government servant, was for certain other considerations, which cannot be included within the ambit of 'in discharge of his official duties' then sanction may not be necessary. No doubt, the investigating officer was shouldering the duty of investigation, but in case, during continuation of the investigation, officer concerned attempts to somehow shelter the accused and adopts illegal tactics in achieving this end, surely, it cannot be said that the investigating officer acted in discharge of his official duties. It is for this contingency, the Apex Court ruled in the case of Raj Kishore Roy v. Kamleshwar Pandey and Anr. (supra) that the question of sanction should be left to be decided in the main judgment by the Trial Court. This Court has also left it for the trial court to decide the question of sanction in the previous proceedings vide Criminal Misc. Application No. 6100 of 1999. No stage for consideration of the question of sanction was specified as such the argument on behalf of the applicant that the earlier order of this Court has not been complied with, is of no consequence. It is one of those cases, where the allegation is that the investigating officer manufactured document in collusion with the doctor to shield the actual offender. Thus, it is evident that the case of Abdul Wahab Ansari (supra) is not applicable. The act of the Investigating Officer in manufacturing false document cannot be brought within the ambit of 'discharge of official duty'. In the circumstances, I do not think that the Magistrate has committed any illegality in taking cognizance and summoning the accused/applicant. In the instant case non bailable warrant was issued on 15.3.2004, cognizance was taken on 30.9.2003 but the present applicant who was fully conscious of the legal procedure has deliberately failed to abide by the rule of law. On the contrary, he has challenged non bailable warrant in different courts and tried to take aid behind the garb of prior sanction under Section 197 Cr.P.C. The applicant cannot be permitted to adopt this protective cover on the ground that no sanction has been granted and, thus, can be permitted to continue to violate the procedure of law and the order of the court.
16. In the circumstances, I do not find any merit in the case. The application is accordingly rejected.