Vinod Prasad, J. - (1.) -In all ten petitioners in both the above connected writ petitions, namely, Damodar Yadav, Ravindra Kumar Yadav, Vijai Yadav, Mahendra Prasad, Arvind Kumar Upadhayay, Jagdish Chand Shukla, and Uma Shankar Singh in the former writ petition and Santosh Prasad Diwedi, Suresh Kumar Sonkar and Kripa Shankar Misra in the later have questioned the legality and justifiability of the sanction order dated 24.12.2007, Annexure-VI, accorded by the President of India and issued by Additional Secretary, Government of India, Lok Nayak Bhawan, Khan Market, New Delhi, by which the President has sanctioned petitioner's prosecution in Crime No. 79 of 1996, for offences under Sections 147, 302, 201 and 121, I.P.C. relating to Police Station Gadwar, District Ballia. Also challenged in the two petitions are the non-bailable warrants issued against the petitioners by the Chief Judicial Magistrate, Ballia, in the aforementioned Crime No. vide Annexure-VII to both the petitions.
(2.) A resume of essential facts indicates that S.I. Suresh Kumar Sonkar accompanied by Constable 148 Daya Shankar Yadav of Police Station Gadwar had gone to serve a stay order regarding a school building construction on Deep Chand Sharma who was raising the said construction in village Siria Kula. After service when they were returning then, in village Chogada Chatti, they witnessed Jitendra Bahadur Singh being belaboured by two or three people by kicks and fists. On the complaint made by the injured Jitendra Bahadur Singh, they arrested Devendra (deceased) and brought him to the police station. Jitendra Bahadur Singh accompanied by Sanjai Singh, Ramesh Singh, and Chandra Deo Singh also came to the police station where Jitendra Bahadur Singh lodged a F.I.R. Crime No. 78 of 96 under Sections 323, 194, 504 and 506, I.P.C. showing the incident to have occurred on 16.7.96 at 7 p.m. against Devendra Singh (deceased) Janardan Singh, and Upendra Singh. In the General Diary of registration of said F.I.R. description of the accused (deceased) is mentioned as 37 years, average built, no injury. The arrest G.D. of the deceased is Annexure-1 to the Writ Petition No. 4293 of 2008. Deceased was locked in the lock up. According to Annexure-2, S.I. S. K. Sonkar was going to urinate when he could not see the deceased accused in the lock up and therefore, he gave him a call. No reply alarmed him and therefore, he called Constable Arvind Upadhayay from the office who also called the deceased but in vain and then they got the lock up unlocked and found deceased lying still on his belly near western lock up wall. He was fully naked except an under garment (Ganji) and his red loin cloth rapped around his neck. Arvind Upadhayay S.O. was immediately informed and the S.I. sensed that Devendra accused had committed suicide. Inquest on the dead body of the deceased was performed on 17.7.96 from 1 p.m. to 3 p.m. by Suresh Singh, S.D.M. Sadar, Ballia and autopsy was performed on the same day at 5 p.m. Which indicate that the deceased had sustained four injuries on his body and the cause of his death was recorded as asphyxia. Vide Annexure-3A it seems that an inquiry into the cause of death of the deceased was ordered by Superintendent of Police Ballia on 18.7.1996 vide letter number S.T. 34/90, memo No. S-15/96. Additional Superintendent of Police, Ballia conducted the inquiry and submitted his report on 19.7.1996 wherein he had mentioned that another inquiry is being conducted by Additional District Magistrate (Finance and Revenue). The said inquiry was ordered by the District Magistrate, Ballia on 18.7.96. The report of Additional District Magistrate (Finance and Revenue) dated 31.3.96, is Annexure-4 to the later writ petition. Virendra Singh informant, who is brother of Devendra Singh deceased, however moved an application on 19.7.96, addressed to the District Magistrate Ballia levelling allegations that his younger brother Devendra Singh deceased was picked up by S.I. Suresh Chand Sonkar on 16.7.96 at 5 p.m. and took him to Gadwar police Station. Next day morning at 6 a.m. informant went to the police station to know the whereabout of the his brother as he had not returned the whole night accompanied by Surya Bali Singh and Jai Murat Singh he was informed by the Station Officer that some inquiry is to be made from his brother and after that he will be released. However, informant was not allowed to meet his brother. In the evening that day at 4 p.m. constable Kripa Shankar and Head Moharrir of police outpost and Anjani Upadhayay informed the informant that he is required by the S.O. and they all accompanied him in a jeep to mortuary at Ballia. There informant met with the S.O. Santosh Kumar Diwedi, S.I. Sonkar, C.O. Sadar, and other higher police officers. Informant was shown the corpse of his brother and seeing the same informant fainted. Thereafter the police personnel cremated the dead body at the cremation ghat. On 18.7.96, informant met with Superintendent of Police Sri Ram Tripathi but was rebuked. Informant thereafter gave a written intimation to Chairman, Human Rights Commission, Chief Justice of India and Chief justice of High Court and other constitutional authorities. With such allegations informant prayed that his F.I.R. be registered and guilty be punished. District Magistrate, Ballia on the said application and on the representation of the Bar Association ordered for registration of F.I.R. It was such an order that the F.I.R. of Crime No. 79 of 96 under Sections 149, 304 and 201 was registered at police station Gadwar District Ballia at 8.30 p.m. Against the police personnel, investigation of the said crime was entrusted to C.B.C.I.D. who after completion of the investigation applied for sanction before the Union Government, Ministry of Home Affairs, to prosecute the applicants under Section 197, Cr. P.C. which sanction was granted on 20/24.12.2007 (Annexure-6). Subsequent thereto warrant of arrest was also issued on 31.1.2008. The Investigating Officer thereafter applied for issuance of Non Bailable warrants before Chief Judicial Magistrate, Ballia which was granted by him on 20.2.2008, Annexure-7.
(3.) IT was at this stage that Damodar Yadav, Ravindra Kumar Yadav, Vijai Yadav, Mahendra Prasad, Arvind Kumar Upadhayay, Jagdish Chand Shukla and Uma Shankar Singh approached this Court under Article 226 of the Constitution with the prayer to issue a writ order or direction in the nature of certiorari quashing the sanction order as well as N.B.W. against Criminal Misc. Writ Petition No. 3617 of 2008. Three other accused also follow suit by filing Criminal Misc. Writ Petition No. 4293 of 2008. Both these writ petitions are being disposed of now by this common order. We have heard Sri Dilip Kumar, learned counsel for the petitioners in both the writ petitions at a great length in support of the two petitions and the learned A.G.A., in opposition and have ourselves perused the writ petitions and the appended annexures.;