- (1.) POONAM Srivastava, J. Heard Shri D. S. Mishra, Counsel for the applicant and learned AGA 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. After arguments were heard on 15-4-2005, 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. S. Mishra on behalf of applicant and Shri V. P. Srivastava for the complainant whose impleadment application was allowed on that date. Learned AGA 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 a counter-affidavit on behalf of the State. 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.
(3.) 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 death 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 Crime No. 103 of 1996 under Sections 147, 148, 302, 201, 218 and 120-B, IPC. Perusal of the FIR 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, was 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. The wife of the deceased Smt. Shakuntala Devi approached this Court by filing a Criminal Misc. Petition No. 6100 of 1999 Smt. Shakuntala v. State of U. P. & 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 under 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. ";