LexOM PRAKASH & ORS. versus STATE OF JHARKHAND THROUGH THE SECRETARY, DEPARTMENT OF HOME, RANCHL-I & ANR.
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[2012] 9 S.C.R. 125 OM PRAKASH & ORS. v. STATE OF JHARKHAND THROUGH THE SECRETARY, DEPARTMENT OF HOME, RANCHl-1 & ANR. (Criminal Appeal No. 1491 of 2012 etc.) SEPTEMBER 26, 2012 [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.] Code of Criminal Procedure, 1973: A B 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 quashe
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