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Delhi High CourtIndian Cases

Mohd Iqbal vs Deputy Secretary (Govt. Of Nct Of Delhi) on 3 August 2005

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Delhi High Court
Mohd Iqbal vs Deputy Secretary (Govt. Of Nct Of Delhi) on 3 August, 2005
Equivalent citations: 122(2005)DLT533, 2005(83)DRJ624
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner is aggrieved by the non-grant of sanction by the competent authority to prosecute certain police officers.

2. The cause for the petitioner to be aggrieved against the police officers arises from a registration of a case against him under Section 302 and Section 34 of the Indian Penal code. The petitioner and his bother Mohd. Tasleem were both accused of the offence and the registration of the case was on the statement of one Mohd. Zakir. Mohd. Zakir and his elder brother Nasir used to go to slaughter house, Sadar Bazar and some dispute arose with the two accused. The petitioner is stated to have caught hold of Nasir from behind while the petitioner’s brother stabbed Nasir in the chest. Nasir subsequently succumbed to these injuries. The charge-sheet was filed and the case was committed for trial. Charges were framed and the prosecution examined seven witnesses. There were three eye witnesses. However, none of the prosecution witnesses identified the accused. The witnesses were declared hostile. The accused were thus acquitted.

3. The case of the petitioner is that he was falsely implicated and that is why no appeal was preferred against the acquittal. The petitioner claimed that he was framed by the police officers which has resulted in their illegal detention and wrongful confinement in Tihar jail. Despite the complaints of the petitioner and notices issued, no action was taken against the police officers and thus the petitioner filed a criminal complaint case No.54/1 of 2001 under Sections 119/120B, 167, 192, 195, 340, 34, 499, 511 and 34 of the Indian Penal Code in the Court of Metropolitan Magistrate, Tis Hazari, Delhi. The Magistrate, however, adjourned the proceedings sine die due to want of sanction since the alleged crime was committed by the public servant while in duty for which prior sanction was mandatory. This order was confirmed by the learned Additional District and Sessions Judge in Criminal Revision No.164/2003 as also by this Court in Crl. Misc. (M) No.3575/2003 on 03.03.2004 However, the High Court issued directions to the Lieutenant Government / Govt. Of NCT of Delhi to dispose of the application of the petitioner for grant of sanction pending since 23.05.2000 and the needful was to be done preferably within a period of two months. Even contempt proceedings were filed for the decision not taking place within the time stipulated but finally the Court was informed that the sanction had been rejected on 29.07.2004

4. It is stated that the accused police officers are facing civil litigation No.11/2002 for malicious prosecution, damages and compensation in the Court of learned Additional District Judge. The order rejecting sanction is stated to be arbitrary, discriminatory violative of the fundamental rights of the petitioner with the object of protecting the officers. The petitioner thus claimed that he had been denied the opportunity of establishing the fault of the officers. The writ petition prays for setting aside the impugned order dated 29.07.2004 rejecting the sanction and issuing certain other directions and laying down guidelines.

5. The order dated 29.07.2004 only intimates the petitioner that the Lieutenant Governor had been pleased to reject the application made by the petitioner. It is in view thereof that the original records were called since the grievance made was that the e was no reasons stated or explained and thus the decision was bad in law. The original records have been perused which show that a detailed note was put up on the basis of the complaint and was sent for opinion of the Law Department. The legal opinion of the Law Department advised against grant of approval. The matter was put up to the Lieutenant Governor setting out the detailed facts including the response of the officers. The acquittal arose on account of witnesses turning hostile and even the eye witnesses did not support the story of the prosecution. The Lieutenant Governor on perusal of the records approved the rejection for grant of sanction but called for explanation as to why the file had not been put up within time. The other nothings in the file were the explanation in that behalf which were put up before the Lieutenant Governor.

6. The petitioner appearing in person contended that the order passed by the Sanctioning Authority cannot be in a mechanical manner and the reasons must be recorded by Sanctioning Authority while agreeing or disagreeing with the view which may have been put up to the Sanctioning Authority. In this behalf learned counsel relied upon the judgment of the Apex Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat, . The High Court has held that the sanctioning authority has to apply its own independent mind for the generation of the genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the Sanctioning Authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. This is specially so since discretion to grant or not to grant sanction vests absolutely in the Sanctioning Authority and it should not be affected by any extraneous considerations. The said case, however, related to a direction passed by the High Court whereby a mandamus was issued to the Sanctioning Authority to grant sanction. This direction was held not to be sustainable.

7. Learned counsel for the respondent, however, points out that the plea of the petitioner cannot be sustained that the reasons must be recorded by the Sanctioning Authority, since it is an administrative function and the notes were put up by the concerned person and application of mind took place and the sanction was rejected.

8. The petitioner also relied upon the judgment of the Supreme Court in S.K. Zutshi and Anr. v. Bimal Debnath and Anr., IV (2004) SLT 14, to contend that the protection granted to officers 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 cloak for doing the objectionable act and thus in view thereof a finding must be recorded by the Sanctioning Authority in that behalf.

9. It is not disputed that there is no mandatory requirement for giving an opportunity of hearing before a grant of sanction and this has been clearly laid down in Superintendent of Police (CBI) v. Deepak Chaudhary, . Petitioner also sought to contend that he must be given an opportunity to establish his case and he should not be shut out from the same at the threshold by refusal of grant of sanction. In this behalf, reference was made to the judgment of the Supreme Court in Raj Kishore Roy v. Kamleshwar Pandey and Anr., IV (2002) SLT 659. It has further to be appreciated that the allegations in that behalf that the case was one where an effort was made to teach the appellant and his brother a lesson for not paying anything to the officers and illegal weapon and cartridge were falsely shown to have been recovered from the appellant. The Apex Court taking into consideration the factual matrix stated that the prosecution must be given an opportunity to establish its case by evidence and the question of sanction was left open to be decided in the main judgment which may be delivered upon conclusion of the trial. Similarly in the State v. Shiv Lal, giving of false and fabricated evidence willfully for using against the accused in the proceedings were held not to be a part of anyone’s official duty.

10. Learned counsel for the respondent relied upon the judgment of the Apex Court in Union of India and Ors. v. Praveen Gupta and Ors., , where the settled legal position was noted that the decision is administrative decision and is a mater of subjective satisfaction of the appropriate Government on the basis of the material available on record. This case, however, dealt with the issue of proceedings under the Land Acquisition Act, 1894. A reference was also made by learned counsel for the respondent to the judgment of the Apex Court in State of Bihar and Anr. v. Shri P.P. Sharma and Anr., . The case diary was considered by the Sanctioning Authority and it was held that there was no non-application of the mind on the part of the Sanctioning Authority.

11. The most material judgment referred to by learned counsel for the respondent is in the case of State of Maharashtra v. Ishwr Piraji Kalpatri and Ors. with connected matters, where the Supreme Court while dealing with the issue of section under the Prevention of Corruption Act, 1947 held that the officer sanctioning the sanction order is not required to state that he has personally scrutinized the file and has arrived at the required satisfaction as long as there had been application of mind and material on record had been examined by the Sanctioning Authority before according sanction.

12. In view of the judgment in Ishwar Piraji Kalpatri and Ors. case (supra), proposition advanced by the petitioner that the Sanctioning Authority while agreeing or disagreeing with the view which may have been put up must record reasons for the same ca not be sustained. The only question to be seen is whether there has been an application of mind and whether the appropriate material was placed before the Sanctioning Authority.

13. A perusal of the original record shows that the matter was examined by the Legal Department and appropriate note was prepared. It is thereafter the matter was put up before the Lieutenant Governor, Sanctioning Authority. The note has specifically referred to the fact that there were eye witnesses to the offence committed under Section 302 of the IPC and the case was registered on the complaint and submission of the brother of the deceased. The fact is that there was a person who had died and his brother had clearly stated that the petitioner and his brother were responsible for the same as the petitioner held him while the brother of the petitioner stabbed him which resulted in the death of the deceased.

14. A perusal of the request for sanction made by the petitioner on 27.05.2000 would show that all that has been alleged is that the brother of the deceased made a false complaint at the behest of the police. In fact what is stated is that the ‘Needle of suspicion’ is pointing at the police officers. It is further stated that no incident of crime has taken place in the slaughter house. The allegation is that the complaint was retaliatory action by the police but does not even state as to what was the past animosity. This complaint/request of sanction has to be considered with the important fact that there were alleged eye witnesses who actually turned hostile. Thus there was no incorrect noting even made which could have taken the Sanctioning Authority in the wrong direction. The whole substratum of the submission of the petitioner is based on the acquittal but the acquittal in-turn arises as a consequence of the witnesses turning hostile including the eye witnesses. There is no past animosity indicated with the police officers. It is in view thereof, that the sanction has been declined by the competent authority and the proposal made by the subordinate was accepted.

15. In view of the aforesaid, the declining of the sanction by the competent authority cannot be said to be such as would call for interference in exercise of jurisdiction under Article 226 of the Constitution.

16. The writ petition is dismissed leaving the parties to bear their own costs.